                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0167n.06

                                          No. 17-1923


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                     FILED
UNITED STATES OF AMERICA,                                                      Mar 30, 2018
                                                                           DEBORAH S. HUNT, Clerk
              Plaintiff-Appellee,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
WILLIAM ANTHONY EMBRY,                               WESTERN DISTRICT OF MICHIGAN

              Defendant-Appellant.




BEFORE:       MERRITT, CLAY, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Defendant William Anthony Embry (“Defendant”) appeals from

the 144-month sentence imposed by the district court following Defendant’s guilty plea to

charges of possession with the intent to distribute cocaine and cocaine base in violation of

21 U.S.C. § 841(a)(1), (b)(1)(B)(ii), and (b)(1)(B)(iii). For the reasons that follow, we AFFIRM

Defendant’s sentence.

                                       BACKGROUND

       On December 4, 2014, investigators obtained and executed a search warrant on

Defendant’s home in Gaines Township, Michigan, whereupon they discovered 972 grams of

cocaine, 94.2 grams of cocaine base, $3,890 in cash, and various drug packaging paraphernalia.

A grand jury indicted Defendant on two counts of possession with the intent to distribute cocaine

and cocaine base. Defendant pleaded guilty to these charges on March 21, 2017.
No. 17-1923, United States v. Embry


        Defendant’s presentence report found that Defendant’s seven previous felony controlled

substance convictions triggered a career offender designation.           Applying the sentencing

enhancement associated with this designation, the report calculated an offense level of 31 and

placed Defendant into criminal history category VI, resulting in a recommended sentence of

188 to 235 months’ imprisonment.         Without the career offender designation, Defendant’s

recommended sentence would have been 84 to 105 months’ imprisonment, reflecting an offense

level of 25 and criminal history category IV.

        The district court imposed a sentence of 144 months’ imprisonment.               In varying

downwards from the recommended sentence of 188 to 235 months, the court explained that it

considered the full extent of the career offender enhancement unnecessary to achieve the

purposes of sentencing:

        I do think some downward variance is appropriate here from the guideline range,
        but I also think this is a case that warrants some measure of the career-offender
        enhancement, even if not all of it, so that the final sentence the Court intends will
        be above where we would be without the career-offender enhancement. And let
        me just go through the factors that are on my mind.

        The first factor is that Mr. Embry is a person who, when I chart out the criminal
        history and some other factors I’ll talk about, really since he left his mother’s
        house at age 18 has dealt with drugs. Eighteen is his first conviction involving
        marijuana and alcohol, including the sale of at least alcohol to minors. And then
        really he just progressed forward to where we are today. And in every time
        sequence of Mr. Embry’s life there’s at least one conviction of a serious
        distribution nature, drug distribution nature. Some are more serious than others.
        But what it tells me is that Mr. Embry, really since becoming an adult, has made
        drug sales his principal occupation. I think that’s corroborated because the
        presentence report doesn’t really talk about any other significant career or
        occupational work. There’s some years in which Mr. Embry was working in a
        limited way. But his support didn’t come from legitimate means, and the
        conviction history suggests the support came merely from selling drugs.

        There’s no GED or diploma that Mr. Embry earned either. Though at least from
        my observation, which has been limited, just through the plea hearing, through
        this kind of a process, he’s plenty intelligent and could easily do that in my view




                                                 2
No. 17-1923, United States v. Embry


        if he set his mind to it. I think he’s been preoccupied with the street and other
        things that demonstrate the conviction history we have. So that’s one.

        (2) It’s true in my mind that much of the history, even though it’s very persistent,
        even though it is also of a similar type, that is the sale of drugs, most of the
        criminal history stays at a fairly low level as drug crimes go. Most of them are
        marijuana. Unfortunately, especially for Mr. Embry in this case and the way the
        guidelines work with or without career offender, moving into cocaine, moving
        into crack cocaine, that just generates higher guideline ranges and escalates the
        significance and seriousness of the drug activity. But the overall history, overall
        not so much, as Ms. Nieuwenhuis cites in her briefs as well. So I think even
        though there’s a lot of it, even though it’s consistent and persistent, it’s not the
        level of seriousness, not the level that looks like a strong organizational network,
        for example, or one that’s held together through coercion or violence of any kind.
        It’s just steady dealing.

        Ultimately when I put all of the factors together, as I said at the outset, I think
        there needs to be some added punishment to what would otherwise be here
        because of the career-offender enhancement which appropriately applies for the
        reasons I indicated, but not the full amount. I don’t think the full amount is
        needed, because as I indicated the overall pattern of dealing doesn’t involve in my
        estimation violence or even significant distribution and organization beyond what
        we see here. And I would note that most of the quantity that is loaded here on the
        guidelines, apart from the career offender, come from Mr. Embry’s own post-
        Miranda statements. If you just went with what was found in the search, I think
        he would be even a couple levels lower than that.

        So all that leads me to saying the appropriate 3553 sentence in my view is
        between the career offender range, between where we’d be without the career
        offender range, and the Court’s intended sentence is 144 months of custody.
        Which I think is a lot of time for anybody, regardless of how much time that
        person has served in the past. And I think it splits appropriately the factors in Mr.
        Embry’s favor and the factors against him in weighing the purposes of sentencing.

(R. 28 at PageID # 166–68.) Defendant now appeals the 144-month sentence entered by the

district court.

                                          DISCUSSION

        When reviewing the substantive reasonableness of the district court’s sentencing

decision, this Court applies a deferential abuse of discretion standard. United States v. Solano-

Rosales, 781 F.3d 345, 356 (6th Cir. 2015). A presumption of reasonableness applies to a




                                                 3
No. 17-1923, United States v. Embry


sentence that, like Defendant’s sentence, is below the Guidelines range. See United States v.

Greco, 734 F.3d 441, 450 (6th Cir. 2013); United States v. Baker, 559 F.3d 443, 448 (6th Cir.

2009); United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008).

        A sentence is substantively reasonable if it is “proportionate to the seriousness of the

circumstances of the offense and offender, and sufficient but not greater than necessary, to

comply with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir.

2008) (citation and internal quotation marks omitted).           Meanwhile, “a sentence may be

substantively unreasonable where the district court ‘selects 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. Moon, 513 F.3d 527,

543 (6th Cir. 2008) (quoting United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006))

(alterations in original).

        The factors set forth under § 3553(a) that must be considered by the sentencing court

include, among others not pertinent here:

        (1) the nature and circumstances of the offense and the history and characteristics
        of the defendant;

        (2) the need for the sentence imposed--

                 (A) to reflect the seriousness of the offense, to promote respect for the
                 law, and to provide just punishment for the offense;

                 (B) to afford adequate deterrence to criminal conduct;

                 (C) to protect the public from further crimes of the defendant; and

                 (D) to provide the defendant with needed educational or vocational
                 training, medical care, or other correctional treatment in the most effective
                 manner; . . .

        (5) any pertinent policy statement—




                                                  4
No. 17-1923, United States v. Embry


                 (A) issued by the Sentencing Commission pursuant to section 994(a)(2)
                 of title 28, United States Code, subject to any amendments to such policy
                 statements by act of Congress (regardless of whether such amendments
                 have yet to be incorporated by the Sentencing Commission into
                 amendments issued under section 994(p) of title 28); and

                 (B) that, except as provided in section 3742(g), is in effect on the date the
                 defendant is sentenced.

18 U.S.C. § 3553(a). Congress has directed the U.S. Sentencing Commission (“Commission”) to

promulgate a standardized rubric to guide courts’ consideration of “the nature and circumstances

of an offense” as well as “the history and characteristics of the defendant” under § 3553(a)(1).

See 28 U.S.C. § 994. This rubric, published as the U.S. Sentencing Guidelines (“Guidelines”),

allows courts to generate a recommended sentencing range for each criminal defendant based on

two calculations:      an offense level and a criminal history score.      Some provisions of the

Guidelines are dictated directly by statute, whereas others are a product of the Commission’s

“important institutional role: It has the capacity courts lack to ‘base its determinations on

empirical data and national experience, guided by a professional staff with appropriate

expertise.’” Kimbrough v. United States, 552 U.S. 85, 108–09 (2007) (citation and internal

quotation marks omitted).

        A sentencing court’s failure to consider a relevant provision of the Guidelines is an abuse

of discretion. See Rita v. United States, 551 U.S. 338, 356–58 (2007); Gall v. United States,

552 U.S. 38, 49 (2007). However, if the Sentencing Commission has applied its expertise and

concluded that the application of a particular Guidelines provision “produces disproportionately

harsh sanctions . . . ‘greater than necessary’ in light of the purposes of sentencing set forth in

§ 3553(a),” a district court may reasonably vary downwards to neutralize the impact of the

relvant Guidelines provision. See Kimbrough, 552 U.S. at 109–10 (“[I]t would not be an abuse

of discretion for a district court to conclude when sentencing a particular defendant that the



                                                   5
No. 17-1923, United States v. Embry


crack/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s

purposes, even in a mine-run case.”); United States v. Blackman, 678 F. App'x 400, 401 (6th Cir.

2017).

         In 2016, the Commission concluded that the career offender enhancement, USSG

§4B1.1, is not necessary in light of the purposes of sentencing set forth in § 3553(a), at least

insofar as it applies to criminal defendants whose “career” offenses do not include a crime of

violence. See U.S. Sentencing Comm’n, “Report to the Congress: Career Offender Sentencing

Enhancements,” Aug. 2016, at 2 (“2016 Report”).                The career offender enhancement

significantly increases1 a defendant’s recommended sentence if the defendant meets the

definition of a career offender, defined under the Guidelines as follows:

         (1) the defendant was at least eighteen years old at the time the defendant
         committed the instant offense of conviction; (2) the instant offense of conviction
         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 of either a crime of
         violence or a controlled substance offense.

See §4B1.1. Based on this definition, the 2016 Report recognizes three distinct classes of career

offenders based on the types of offenses that can trigger a career offender designation: (1) drug

trafficking only; (2) violent only; (3) and mixed. 2016 Report, at 2. Following a lengthy study

of recidivism rates among the three classes of career offenders, the Commission found that drug

trafficking only career offenders “are not meaningfully different from other federal drug

trafficking offenders and should not categorically be subject to the significant increases in

penalties required by the career offender directive.”       Id. at 3.   The Commission therefore

concluded that the §4B1.1 enhancement should apply only to “those offenders who have

committed at least one ‘crime of violence,’” but the Commission found that it could not amend

         1
         Section 4B1.1 overrides the recommended sentence under the Guidelines unless the
calculated range is already “at or near” the statutory maximum. See 28 U.S.C. § 994(h).


                                                  6
No. 17-1923, United States v. Embry


the definition of “career offender” itself because that term is defined by statute under 28 U.S.C.

§ 994(h). See id. Accordingly, the Commission “recommend[ed] that Congress amend the

directive.” Id. Congress has taken no action on the Commission’s recommendation.

        Defendant’s sole argument in this case is that his sentence is unreasonable because the

sentencing court gave too much weight to the career offender enhancement, USSG §4B1.1. As

an individual who meets the description of a drug trafficking only career offender, Defendant

asserts that the evidence and reasoning presented in the 2016 Report renders his sentence

unreasonable so long as he received any enhancement to his sentence based on USSG §4B1.1.

(See Def. Br. 10 (“Even here, where the district court varied downward from the range, the 144-

month sentence is substantively unreasonable because the district court started from an

unreasonably high career offender range.”) Defendant’s argument fails for two reasons.

        First, Defendant’s argument fails because he did not request that the sentencing court

give less weight to the career offender provision based on the 2016 Report. If Defendant had

articulated this request, the sentencing court would have been required to consider it.2 See Rita,

551 U.S. at 356–58; United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006) (“Where a

defendant raises a particular 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.”). We cannot find that the sentencing court abused its discretion by failing to

consider an argument that Defendant did not raise, particularly where, as here, the court would

have been obligated only to consider—not to accept—the argument. See Kimbrough, 552 U.S. at

109–10; Blackman, 678 F. App’x at 401.




        2
         Defendant does not argue that the 2016 Report qualifies as a “pertinent policy
statement” that the sentencing court failed to consider under § 3553(a)(5).


                                                7
No. 17-1923, United States v. Embry


        Second, Defendant’s argument fails because the sentencing court’s reasoning reflects the

recommendations of the 2016 Report, even if the court did not mention the 2016 Report by

name. Although the sentencing court did not describe Defendant as a “drug trafficking only

career offender,” the court nevertheless acknowledged that Defendant’s criminal history was

primarily of “a similar type, that is the sale of drugs,” that “most of the criminal history stays at a

fairly low level as drug crimes go,” and that “the overall pattern of dealing doesn’t involve . . .

violence.” (R. 28 at PageID # 167.) On this basis, the court contemplated that an enhancement

to Defendant’s sentence might not be appropriate under the career offender provision. The court

ultimately concluded that a career offender enhancement was appropriate despite Defendant’s

nonviolent     criminal    history,   however,   because   of   two    recidivism-related   concerns:

(1) Defendant’s “principal occupation” during his adult life has been the sale of drugs,

suggesting a risk of recidivism because Defendant currently lacks other occupational skills; and

(2) the trajectory of Defendant’s drug trafficking activity has escalated from marijuana

distribution to cocaine and crack cocaine distribution. (Id.) Based on these concerns, the

sentencing court determined that a sentence greater than 84 to 104 months—and specifically

144 months—was appropriate “with or without the career offender” enhancement.                     (Id.)

Therefore, the court appropriately used the Guidelines as “the starting point and the initial

benchmark” when determining Defendant’s sentence, Gall, 552 U.S. at 49, and it considered the

precise recommendations of the 2016 Report even if it did not mention the report by name.

                                           CONCLUSION

        For the foregoing reasons, we AFFIRM Defendant’s sentence.




                                                  8
