                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 10a0113n.06

                                             No. 08-1740                                    FILED
                                                                                        Feb 22, 2010
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
        Plaintiff-Appellee,                               )
                                                          )
v.                                                        )    ON APPEAL FROM THE UNITED
                                                          )    STATES DISTRICT COURT FOR
                                                          )    THE EASTERN DISTRICT OF
MICHAEL DUANE SORRELL,                                    )    MICHIGAN
                                                          )
        Defendant-Appellant.                              )


Before: SILER, MOORE, and CLAY, Circuit Judges.

        SILER, Circuit Judge. Michael Sorrell appeals his sentence of 262 months’ imprisonment.

He asserts that the district judge did not adequately explain his sentence and that it was unreasonable.

For the following reasons, we AFFIRM.

                                        I. BACKGROUND

        Sorrell was indicted for conspiring to distribute and possess with intent to distribute 50 grams

or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846. Sorrell

pleaded guilty pursuant to a written plea agreement, which acknowledged that he faced a mandatory

sentence of life imprisonment under the original penalty enhancement information, but stated that

the court would be required to sentence him to a mandatory twenty years’ imprisonment with the

amended penalty enhancement information. Attachments to the agreement indicated that his

Guidelines range was 188–235 months.
No. 08-1740
United States v. Sorrell

       During the preparation of the presentence report, which classified Sorrell as a career offender

under USSG § 4B1.1, the parties discovered that the written agreement inaccurately calculated

Sorrell’s Guidelines range. With application of the career offender enhancement, his Guidelines

range was 262–327 months. The district court gave Sorrell the opportunity to withdraw his plea.

Sorrell declined and chose to move forward, knowing that he would be subject to an advisory

Guidelines range of 262–327 months.

       At the sentencing hearing, Sorrell requested—without notice to the government—a

downward departure from the Guidelines range pursuant to § 4A1.3(b)(1), which permits a

downward departure “[i]f reliable information indicates that the defendant’s criminal history

category substantially over-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” The district court denied that request,

noting that “on the review of [Sorrell’s] criminal history, character and conduct that the scoring

adequately represents the likelihood of future misconduct.” During the allocution stage of the

hearing, Sorrell specifically requested “a sentence at the low end of the [G]uidelines range which

[he] underst[ood] to be 262 months.” The district court granted Sorrell’s request for a low-end

sentence and imposed a sentence of 262 months. In coming to that conclusion, it stated:

       I have little to add. I think [Sorrell’s counsel] frankly has summarized [Sorrell’s]
       circumstances well. [He] is here as a result of his repeat felony drug misbehavior.
       She is correct also I think fairly in indicating as does the report that he has given care
       for his two children. I do not view as a result a strong predicate for departing from
       the lower end of the [G]uidelines.

       The district court also ordered Sorrell be placed in an institution with a comprehensive drug

treatment program, imposed ten years of supervised release, and waived all fines and costs except

                                                 -2-
No. 08-1740
United States v. Sorrell

the $100 special assessment. Before concluding the hearing, the district court asked Sorrell’s

counsel if she had any questions or objections to the sentence. She responded that she did not.

                                         II. DISCUSSION

       “We review a district court’s sentencing determination, ‘under a deferential abuse-of-

discretion standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)

(quoting Gall v. United States, 552 U.S. 38, 41 (2007)).          Reasonableness review has two

components: procedural and substantive. Gall, 552 U.S. at 51. Sorrell challenges both components.

A. Procedural Reasonableness

       A district court abuses its sentencing discretion if it “commit[s] [a] 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—including an

explanation for any deviation from the Guidelines range.” Id. Sorrell claims that the district court’s

explanation for his sentence was inadequate. Because he did not challenge the adequacy of the

explanation before the district court at any time during the sentencing hearing, even after the court

asked if he had any objections, we review this challenge for plain error. United States v. Vonner, 516

F.3d 382, 386 (6th Cir. 2008); United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004).

       Sorrell specifically asked for a sentence at the low end of the Guidelines range—not a

variance—based on his family history, an early exposure to substance abuse, his own personal

substance abuse history, his limited crack cocaine sales to a “smaller, targeted group” of people, and

his role as a parent to two children. The district court agreed with Sorrell’s request and sentenced

                                                -3-
No. 08-1740
United States v. Sorrell

him to 262 months’ imprisonment. Although its explanation was cursory, the district court stated

that Sorrell’s counsel summarized his situation well, pointed to his “repeat felony drug misbehavior,”

and noted his role as a caregiver for his two children. The sentencing judge also noted that the

Guidelines are merely advisory, that the factors outlined in § 3553(a) provide the criteria for

determining the appropriate sentence, and that he had considered those factors in imposing the

sentence.

       Considering the framework through which we review Sorrell’s challenge, the district court

did not commit plain error in explaining the sentence. See, e.g., Vonner, 516 F.3d at 386–87

(concluding that the district court had not committed plain error when his explanation stated that he

“had ‘considered the nature and circumstances of the offense, the history and characteristics of the

defendant, and the advisory Guidelines range, as well as the other factors listed in 18 [U.S.C. §]

3553(a)’”). A district court is not required to provide as much specificity in its explanation of a

within-Guidelines sentence—such as this one—compared to an outside-Guidelines sentence. Id. at

387. We have also explained that “the district court need not explicitly reference each of the

§3553(a) factors,” so long as there is “sufficient evidence in the record to affirmatively demonstrate

the court’s consideration of them.” United States v. McBride, 434 F.3d 470, 476 n.3 (6th Cir. 2006).

Although the district court did not explicitly reference the individual factors, it referred to §3553(a)

and demonstrated consideration of the factors therein. Most important, because Sorrell’s sentence

was precisely what his counsel requested, a lengthy explanation was not necessary under these

circumstances.



                                                 -4-
No. 08-1740
United States v. Sorrell

B. Substantive Reasonableness

       Although Sorrell focused on his procedural challenge in his brief and at oral argument, he

also appears to challenge the substantive reasonableness of his sentence. Because a defendant is not

required to object to the “reasonableness” of the length of his sentence during the sentencing hearing,

we review challenges to substantive reasonableness for abuse of discretion. Vonner, 516 F.3d at 389

(“[R]easonableness is the standard of appellate review, not the standard a district court uses in

imposing a sentence.”). We apply a presumption of reasonableness for within-Guidelines sentences.

Id. (electing to continue this tradition after it was affirmed by Rita, 551 U.S. at 347).

       Sorrell, however, has not rebutted the presumption here. The district court had ample reason

to believe that 262 months’ imprisonment was the appropriate sentence for Sorrell. Even though he

helped care for two children, had an early exposure to controlled substances and a history of

substance abuse, Sorrell also had a very long criminal history, which the district court pointed out.

The presentence report reflected that he had four felony convictions and a misdemeanor conviction,

and that he was on supervised release when he committed the offense at issue here. On this record,

we cannot say that the district court’s 262-month sentence—the bottom of the Guidelines

range—was unreasonable. Indeed, the 262-month sentence was exactly the sentence requested by

Sorrell’s counsel to be imposed by the district court.

       AFFIRMED.




                                                 -5-
No. 08-1740
United States v. Sorrell

       CLAY, Circuit Judge, dissenting. The district judge in this case has sent a man to prison

for 262 months without taking the time to fully explain the sentencing factors that motivated him to

conclude that the Defendant should spend almost 22 years in prison. The majority opinion is almost

as bare bones as the sentencing proceeding itself, fails to consider copious amounts of relevant

precedent pertaining to sentencing issues, and ignores the well-established rule that a district judge

must explain the sentence he imposes. For these reasons, I respectfully dissent.

       “When a defendant raises a particular[, nonfrivolous] argument in seeking a lower sentence,

the record must reflect both that the district judge considered the defendant's argument and that the

judge explained the basis for rejecting it.” United States v. Gapinski, 561 F.3d 467, 474 (6th Cir.

2009) (quoting United States v. Lalonde, 509 F.3d 750, 770 (6th Cir. 2007)). In this case, Defendant

made a series of arguments for a lower sentence: the economic pressure his family faced when he

was young, his early exposure to drugs and his continuing substance abuse problems, the fact he sold

drugs to a relatively limited number of people, and that he is a father to two children. The district

court’s only reference to these arguments was to briefly note that Sorrell had “given care” to his two

children. This cursory treatment of the Defendant’s arguments simply does not satisfy the district

court’s obligation to explain its sentence. The district court must “adequately articulate[] its

reasoning for imposing the particular sentence chosen.” United States v. Bolds, 511 F.3d 568, 581

(6th Cir. 2007).

       The majority’s defense of the district court’s largely unexplained sentence is to merely invoke

“plain error review.” The majority never provides any citation to a case where so perfunctory an

explanation for a sentence has been upheld. The majority makes the unsupportable, and utterly

                                                 -6-
No. 08-1740
United States v. Sorrell

conclusory, statement that the district court “demonstrated consideration” of the § 3553(a) factors.

The majority does not express how it divined the district court’s consideration of the § 3553(a)

factors. Noting that Sorrell was a repeat offender and that he took care of his children hardly

demonstrates consideration of “the nature and circumstances of the offense and the history and

characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). It seems self-evident that Sorrell was

presenting more about himself than the fact that he was a father. He alluded to his difficult

upbringing and the nature of his crime, which involved, in his attorney’s words, a “smaller targeted

group that he socialized with and he provided controlled substances to.” (Sentencing Tr. at 13).

        The district judge never referenced these arguments, resulting in an unreasonable sentence

under United States v. Vonner, 516 F.3d 382 (6th Cir. 2008). The en banc majority in Vonner held

that the crucial question is “whether ‘the record makes clear that the sentencing judge listened to

each argument,’ ‘considered the supporting evidence,’ was ‘fully aware’ of the defendant’s

circumstances and took ‘them into account’ in sentencing him.” Id. at 387 (quoting Rita v. United

States, 551 U.S. 338, 358 (2007)). The majority cannot point to any part of the sentencing transcript

that “makes clear” that the judge listened to each argument and considered the supporting evidence.

The district court merely accepted Defendant’s counsel’s statements without exercising its own

independent judgment and failed to create a meaningful record as required by Supreme Court

precedent and this circuit’s precedent. See, e.g., Rita, 551 U.S. at 356 (noting that the requirement

of 18 U.S.C. § 3553(c) for a district court to “state in open court the reasons for its imposition of the

particular sentence”); United States v. Simmons, 587 F.3d 348, 361 (6th Cir. 2009) (acknowledging



                                                  -7-
No. 08-1740
United States v. Sorrell

that “our case law and the Federal Rules of Criminal Procedure indicate that, as a procedural matter,

the district judge must generally speak to arguments that are clearly presented and in dispute”).

       Based solely on the district court’s complete failure to satisfy the requirement that it explain

its sentence, it is indefensible that the majority would uphold the sentence. What makes this case

different in the eyes of the majority is that: “Most important, because Sorrell’s sentence was

precisely what his counsel requested, a lengthy explanation was not necessary under these

circumstances.” (Majority Op. at 4). This statement cites no case or statutory provisions for support.

Rather, the majority has created an entirely new rule of sentencing in order to affirm this

inadequately explained sentence as reasonable. The request of Defendant’s attorney may make the

sentence substantively reasonable, although that issue need not be decided, but in no way does an

attorney’s statement at sentencing absolve a district court of its clear duty to explain the sentence it

imposes. The district court cannot abdicate its responsibility even in the face of an agreement by

counsel for the government or the defendant as to the proposed length of a sentence.

       The district court’s reliance on Defendant’s attorney is particularly troubling given the

possibility of ineffective assistance of counsel at sentencing. It is impossible to discern on this

record whether Defendant’s counsel was ineffective, but creating a blanket assumption that adopting

the Defendant’s argument is procedurally reasonable is extremely problematic. A defendant’s rights

are not protected when the district court fails to perform an independent analysis and exercise its own

discretion. The majority’s holding encourages district courts to abdicate their responsibility at

sentencing and to parrot whatever a defendant’s attorney says.



                                                  -8-
No. 08-1740
United States v. Sorrell

       The district court’s comment that it had “little to add” is particularly disturbing. The district

court is required to explain how the sentence it imposes satisfies the § 3553(a) factors. “Simply

listing the § 3553(a) factors and various characteristics of the defendant without referring to the

applicable Guidelines range or explaining the decision to stay within or deviate from that range is

insufficient.” Bolds, 511 F.3d at 580 (citations and quotations omitted). Defendant’s argument

merely stated a number of reasons why the sentence should be lower. It was the district court’s

responsibility to explain how the arguments made by counsel, the relevant sentencing guidelines, and

the § 3553(a) factors combine to lead the district court to impose the sentence it chose. “The district

court must provide a clear explanation of why it has either accepted or rejected the parties’

arguments and thereby chosen the particular sentence imposed, regardless of whether it is within or

outside of the Guidelines.” Id. The district judge undoubtedly failed to satisfy this requirement. All

the district judge stated were uncontested facts, that Sorrell was a repeat felony drug offender and

that Sorrell has two children for which he provides support. We have no way of knowing how those

facts or the multiple other arguments raised by Sorrell weighed in the mind of the district court

whose duty it was to impose the correct sentence.

       The district judge’s decision to simply accept Defendant’s proposed sentence with almost

no comment renders the sentence unreviewable by this Court. A sentence that does not provide for

meaningful appellant review serves as a detriment to Defendant’s exercise of his rights and a

detriment to our criminal justice system by undermining a procedure that is regularly and

consistently applied to give the appearance and substance of propriety. “After settling on the

appropriate sentence, [the district judge] must adequately explain the chosen sentence to allow for

                                                 -9-
No. 08-1740
United States v. Sorrell

meaningful appellate review and to promote the perception of fair sentencing.” Gall v. United

States, 552 U.S. 38, 50 (2007). Neither of these purposes emphasized in Gall are achieved by

adopting without additional commentary the arguments of one of the parties before the court.

        Even though under plain error review, the sentencing judge’s treatment of a defendant’s

arguments need not be exhaustive, we should be mindful that each time we affirm a more and more

cursory explanation for a sentence, we encourage district judges to give short shrift in their

explanations. A satisfactory explanation for Defendant’s sentence likely could have been supplied

in an additional five or ten minutes. Considering the stakes at a federal sentencing, it seems

appropriate to require that district courts take the extra time to clearly explain to the defendant why

it arrived at the given sentence.

        Furthermore, the explanation itself provides incalculable value to the administration of

justice. As the Supreme Court in Rita noted, “By articulating reasons, even if brief, the sentencing

judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned

process but also helps that process evolve.” Rita, 551 U.S. at 357. Rather than foster a procedure

that provides public confidence in the sentencing process and provides crucial information for the

review of the sentence on appeal, the majority has chosen to affirm a district court’s sentence that

expresses no comprehension of several of Defendant’s primary arguments. The public sentencing

of criminal defendants is not merely to provide a right to an individual defendant but also to promote

the “public’s trust in the judicial institution [and] provide the public with the assurances that creates

that trust” Id at 356.



                                                  -10-
No. 08-1740
United States v. Sorrell

       Because the sentence is procedurally unreasonable even under the plain error standard, I

respectfully dissent.




                                             -11-
