                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0216n.06
                            Filed: March 23, 2009

                                           No. 06-6610

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellee,                               )        UNITED STATES DISTRICT
                                                         )        COURT FOR THE EASTERN
v.                                                       )        DISTRICT OF TENNESSEE
                                                         )
JERMAINE BAKER,                                          )        OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        KEITH, COLE, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendant Jermaine Baker appeals the 300-month sentence

he received following his guilty plea for conspiracy to distribute cocaine. Finding no error, we

AFFIRM.

                                                I.

       This case arose out of a joint investigation by local and federal law enforcement agents into

a drug trafficking organization coordinated by Myron Baker and Rodney Bates in Chattanooga,

Tennessee. Through confidential sources and authorized wiretaps, agents learned that Myron Baker

acted as the primary supplier for the organization, obtaining cocaine hydrochloride from Atlanta,

Georgia. Wiretap and pen register information indicated that defendant, Myron Baker’s half brother,

also spoke to Rodney Bates on multiple occasions. In the fall of 2004, a confidential source made
No. 06-6610
United States of America v. Jermaine Baker

a controlled purchase of 4.7 grams of crack cocaine from defendant. Additionally, defendant

arranged a purchase of 11.9 grams of cocaine base for a confidential informant.

       On June 13, 2006, a federal grand jury in the Eastern District of Tennessee returned a

fourteen-count indictment against defendant and eleven other individuals, including Myron Baker.1

The first count charged all twelve defendants with conspiracy to distribute five kilograms or more

of cocaine hydrochloride, fifty grams or more of crack cocaine, and 100 kilograms or more of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(B), and 846. Counts eight and

nine charged defendant individually with distribution of crack cocaine in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(B), and 841(b)(1)(C).

       On September 11, 2006, defendant appeared before the district court with counsel and

entered a guilty plea pursuant to a plea agreement. Defendant pleaded guilty to conspiracy to

distribute five grams or more of a mixture or substance containing cocaine base, a lesser-included

offense of count one.

       The district court held a sentencing hearing for defendant and three other defendants who had

pleaded guilty to the charges in the indictment on December 21, 2006. With respect to defendant,

the district court determined, without objection, that the total offense level was 34 and the criminal

history category was VI, which yielded a Guidelines range of 262 to 327 months.2 Defense counsel


       1
       Defendant’s appeal in this case has been consolidated with the appeals of two of his co-
defendants: Roderick Bates, No. 07-5033, and Myron Baker, No. 07-5412.
       2
        As the Presentence Investigation Report (“PSR”) noted, defendant qualified as a career
offender within the meaning of U.S.S.G. § 4B1.1(a) because he had been convicted of two prior
controlled substance offenses. This yielded a base offense level of 37. After a full three-level

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United States of America v. Jermaine Baker

argued for a sentence at the bottom end of the range, emphasizing defendant’s family support, his

cooperation with the government, his minor role in the conspiracy, and his remorse. The district

court first acknowledged that the Guidelines were not mandatory. However, citing the quantity of

drugs involved, the level of the defendants’ participation in the offense, their cooperation with the

government, and their decisions to plead guilty, the district court stated that it had decided to remain

within the Guidelines range and not to sentence the defendants at the upper end of that range. Then,

referring to the need for specific deterrence, retribution, and general deterrence, the district court

sentenced defendant to 300 months’ imprisonment. Defendant timely appealed his sentence.3

                                                   II.

        On appeal, defendant argues that the 300-month sentence he received was both procedurally

and substantively unreasonable. He also argues that he is entitled to a remand for resentencing on

the basis of the recent amendment to the Sentencing Guidelines involving the base offense levels for

crack cocaine offenses.

A. Unreasonableness of the Sentence

        Following United States v. Booker, 543 U.S. 220 (2005), we review a district court’s

sentencing decisions “under a deferential abuse-of-discretion standard,” for reasonableness. Gall


reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, the total offense level was 34.
        3
         Although defendant filed his notice of appeal after he was sentenced, but before the district
court entered judgment, we still possess appellate jurisdiction. See FED . R. APP . P. 4(a)(2) (“A notice
of appeal filed after the court announces a decision or order—but before the entry of the judgment
or order—is treated as filed on the date of and after the entry.”); Metro. Life Ins. Co. v. Marsh, 119
F.3d 415, 418 n.3 (6th Cir. 1997) (“As long as a subsequent final order is eventually entered, a
prematurely filed notice of appeal can confer appellate jurisdiction.”).

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v. United States, 128 S. Ct. 586, 591 (2007); United States v. Stephens, 549 F.3d 459, 464 (6th Cir.

2008). This inquiry consists of both a procedural and a substantive component. Gall, 128 S. Ct. at

597.

       1. Procedural Unreasonableness

       First, we must “ensure that the district court committed no significant procedural error.” Id.

A sentence is procedurally unreasonable if the district court fails to calculate (or improperly

calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a)

factors, selects a sentence based on clearly erroneous facts, or fails to adequately explain the chosen

sentence. Id. Here, defendant does not challenge the district court’s calculation of the applicable

Guidelines range of 262 to 327 months. See Sentencing Tr. at 19, J.A. at 134 (“THE COURT: Mr.

Philylaw, did the Court state [the Guidelines range] correctly for your client? MR. PHILYLAW:

Yes, Your Honor.”). Instead, defendant argues that the sentence he received is procedurally

unreasonable because the district court failed to consider—and failed to explain its basis for

rejecting—defendant’s requests for a sentence below the Guidelines range.

       After calculating the applicable Guidelines range, the district court must “consider the

arguments of the parties with respect to the propriety of a particular sentence over another, while

being guided by the statutory factors as set forth in § 3553(a).”4 United States v. Moon, 513 F.3d


       4
        Section 3553(a) requires a district court to consider the following factors when imposing a
sentence:

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


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527, 538 (6th Cir. 2008) (citing Gall, 128 S. Ct. at 596). The district court then “‘must adequately

explain the chosen sentence to allow for meaningful appellate review and to promote the perception

of fair sentencing.’” Id. (quoting Gall, 128 S. Ct. at 597).

       But we have never required a district court to engage in a “rote listing or some other

ritualistic incantation of the relevant § 3553(a) factors.” United States v. Dexta, 470 F.3d 612, 614-

15 (6th Cir. 2006); see also United States v. Mayberry, 540 F.3d 506, 518 (6th Cir. 2008). The

record need only be “‘sufficiently detailed to reflect the considerations listed in § 3553(a)’ and to


       (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;

       (3) the kinds of sentences available;

       (4) the kinds of sentence and the sentencing range established for (A) the applicable
       category of offense committed by the applicable category of defendant as set forth in
       the guidelines . . .

       (5) any pertinent policy statement (A) issued by the Sentencing Commission . . .

       (6) the need to avoid unwarranted sentence disparities among defendants with similar
       records who have been found guilty of similar conduct; and

       (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

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allow for meaningful appellate review.” Mayberry, 540 F.3d at 518 (quoting Moon, 513 F.3d at

539); see also United States v. Husein, 478 F.3d 318, 330 (6th Cir. 2007) (“[T]he reasons that [the

district court] provide[s] for the sentence must sufficiently reflect considerations akin to those

enumerated in the statute.”).

        Likewise, the district court is not required to “give the reasons for rejecting any and all

arguments [made] by the parties for alternative sentences.” United States v. Vonner, 516 F.3d 382,

387 (6th Cir. 2008) (en banc). It is sufficient if the district court “set[s] forth enough [of a statement

of reasons] to satisfy the appellate court that he has considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 127

S. Ct. 2456, 2468 (2007); see also Moon, 513 F.3d at 539 (stating that the district court must

“provide some indication that the court considered the defendant’s arguments in favor of a lower

sentence and the basis for rejecting such arguments”); United States v. Gale, 468 F.3d 929, 940 (6th

Cir. 2006) (noting that remand may be appropriate where “a defendant’s argument and supporting

evidence presents an arguably meritorious claim for a lesser sentence, but there is little to suggest

that the district court actually considered it”). A lengthy explanation of the sentence may be

particularly unnecessary where the district court imposes a within-Guidelines sentence and where

a matter is “conceptually simple” and “the record makes clear that the sentencing judge considered

the evidence and arguments.” Rita, 127 S. Ct. at 2468-69. Ideally, of course, “a district court will

address a defendant’s nonfrivolous arguments for a lesser sentence.” United States v. Duane, 533

F.3d 441, 452 (6th Cir. 2008) (citing Vonner, 516 F.3d at 386).



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       At the sentencing hearing in this case, defendant requested a sentence below the Guidelines

range based upon three grounds: 1) his extensive family support, 2) his cooperation with the

government, and 3) his minor involvement in the drug conspiracy. Defense counsel also pointed to

defendant’s remorse. Defendant himself apologized to the court, stating that he had “recently

accepted . . . Christ in my life.” Sentencing Tr. at 24-25, J.A. at 112-13. Defendant argues, however,

that the district court only ran through a “generic litany” in explaining the sentence, because it was

sentencing four co-defendants at the same time, and that it did not address his specific arguments for

leniency.

       Because defendant did not object to the adequacy of the district court’s explanation of the

sentence when given the opportunity to do so at the sentencing hearing, we review this challenge for

plain error. Vonner, 516 F.3d at 386; United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004);

see also Sentencing Tr. at 32-34, J.A. at 138-40 (“THE COURT: Does any party have any objection

to the sentence the Court just announced that they have not already raised with the Court? . . . Mr.

Philylaw? MR. PHILYLAW: No, Your Honor.”). To establish plain error, a defendant must show

the following:

       (1) that an error occurred in the district court; (2) that the error was plain, i.e.,
       obvious or clear; (3) that the error affected defendant’s substantial rights; and (4)
       that this adverse impact seriously affected the fairness, integrity or public reputation
       of the judicial proceedings.

United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). We will find plain error only in

exceptional circumstances, “‘where the error is so plain that the trial judge . . . [was] derelict in




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countenancing it.’” Vonner, 516 F.3d at 386 (quoting United States v. Gardiner, 463 F.3d 445, 459

(6th Cir. 2006)).

        Based upon the record of the sentencing hearing in this case, the district court did not

err—plainly or otherwise—in announcing defendant’s sentence. First, the district court explicitly

stated that it had “taken into account the background and circumstances of each defendant, the drug

quantities involved with each defendant, their level of participation in the charged offense, [and] the

fact they cooperated with the government in providing information.” Sentencing Tr. at 27-28, J.A.

at 115-16. As a result of its consideration of these factors, the district court decided “to remain

within the guidelines” and “not to impose a sentence at the upper end of the guideline range.”

Sentencing Tr. at 28, J.A. at 116. Thus, any argument that the district court did not consider

defendant’s cooperation with the government or his minor role in the offense is belied by the court’s

own statements at the sentencing hearing. Although the district court did not specifically respond

to defendant’s arguments about his extensive family support, his remorse, or his recent conversion

to Christianity, these matters are “conceptually simple” and are encompassed within § 3553(a)(1),

which requires a sentencing court to consider “the history and characteristics of the defendant.” And

the district court did note that it had taken into account the “history and characteristics of each of the

defendants” as well as the “nature and circumstances of the offense.” Sentencing Tr. at 28-29, J.A.

at 116-17. The court also referred to the need for specific deterrence, stating that defendant’s

background “indicate[d] to the Court that the Court has to be more concerned about [his] committing

future crimes.” Sentencing Tr. at 28, J.A. at 116. The district court further cited retribution and

general deterrence as major concerns. Although the district court’s explanation of defendant’s

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sentence could have been more detailed, we are satisfied that it adequately considered the § 3553(a)

factors as well as defendant’s arguments for leniency. Accordingly, defendant’s sentence is not

procedurally unreasonable.

       2. Substantive Unreasonableness

       If the sentence is procedurally sound, we then must consider “the substantive reasonableness

of the sentence imposed,” taking into consideration the totality of the circumstances. Gall, 128 S.

Ct. at 597. “District courts are charged with imposing ‘a sentence sufficient, but not greater than

necessary, to comply with the purposes’ of sentencing.” United States v. Alexander, 543 F.3d 819,

822 (6th Cir. 2008) (quoting 18 U.S.C. § 3553(a)). A sentence is substantively unreasonable if the

district court “selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to

consider relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent

factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008); Husein, 478 F.3d at 332.

Sentences imposed within a properly-calculated Guidelines range enjoy a rebuttable presumption of

substantive reasonableness on appeal. Haj-Hamed, 549 F.3d at 1025; Vonner, 516 F.3d at 389-90;

see also Rita, 127 S. Ct. at 2462-63 (holding that “a court of appeals may apply a presumption of

reasonableness to a district court sentence that reflects a proper application of the Sentencing

Guidelines”).

       In one sentence of his appellate brief, defendant argues that his 300-month sentence is

“plainly unreasonable” because the “culpability involved in the two small crack cocaine transactions

for which he is being punished does not merit a twenty-five year sentence.” Appellant’s Br. at 19.

Initially, we note that defendant has failed to sufficiently develop his argument regarding substantive

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unreasonableness, and he has therefore waived it on appeal. United States v. Layne, 192 F.3d 556,

566 (6th Cir. 1999) (“‘[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived.’”). Even were we to address the merits of this

argument, however, we would conclude that defendant’s sentence is not substantively unreasonable.

Because the sentence falls within the properly-calculated Guidelines range, it is entitled to a

presumption of reasonableness. Haj-Hamed, 549 F.3d at 1025. Defendant has entirely failed to

rebut this presumption by showing that the district court 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.

B. Resentencing Based Upon Amended Base Offense Levels for Crack Cocaine

       Finally, in only two sentences of his brief, defendant suggests that he is entitled to

resentencing in light of the recent amendment to the Sentencing Guidelines, which retroactively

reduced the base offense levels for crack cocaine. Under the amended Guidelines, at least five grams

but less than twenty grams of cocaine base yields a base offense level of 24 as opposed to 26.

U.S.S.G. § 2D1.1(c)(8). Initially, defendant has waived any argument that he is entitled to

resentencing on this basis by failing to develop it on appeal. See Layne, 192 F.3d at 566.

Regardless, however, the amendment would have had no effect on defendant’s sentence: the base

offense level of 37 that applied in defendant’s case was “derived exclusively from the Guidelines’

unamended career-offender provision set forth in U.S.S.G. § 4B1.1(a), not the amended drug-

quantity table.” Alexander, 543 F.3d at 825.

                                                 III.

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




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