                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0631n.06
                            Filed: August 29, 2007

                                          No. 06-5354


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
GERALD WAYNE COLLIER,                                EASTERN DISTRICT OF KENTUCKY

       Defendant-Appellant.

                                              /




BEFORE:        BOGGS, Chief Judge; CLAY and ROGERS, Circuit Judges.

       CLAY, Circuit Judge. Defendant, Gerald Wayne Collier, appeals the district court’s

judgment convicting him on one count of possession with intent to distribute methamphetamine in

violation of 21 U.S.C. § 841(a)(1), and sentencing him to 480 months of imprisonment. For the

reasons that follow, we AFFIRM.

                                        BACKGROUND

       On June 1, 2005, officers responded to an anonymous complaint of a methamphetamine

manufacturing operation at 195 Collier Road, London, Kentucky, the residence of Defendant’s uncle,

Jesse B. (a.k.a. Glen) Collier (“Glen Collier”). At the scene, they encountered Defendant, who fled

upon seeing the police. The officers ultimately apprehended Defendant and arrested him. They
                                           No. 06-5354

recovered a large quantity of methamphetamine from Defendant’s car, a small quantity on his person,

and approximately $1,900. On July 28, 2005, a federal grand jury in the Eastern District of Kentucky

indicted Defendant on one count of possession with intent to distribute five grams or more of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1). A jury trial commenced on October 4,

2005.

        The prosecution’s case-in-chief consisted of testimony from Officer Brian Reams (“Reams”),

Deputy Sheriff Daryl Zanet (“Zanet”), Sergeant Eddie Sizemore (“Sizemore”), Deputy Sheriff Albert

Hale (“Hale”), Deputy Sheriff Brad Mitchell (“Mitchell”), drug analyst Beverly Wagoner

(“Wagoner”), and David Gray (“Gray”), an agent of the Drug Enforcement Agency (“DEA”).

Officer Reams testified that, on June 1, 2005, as the officers approached 195 Collier Road, they

observed four vehicles parked nearby on the street. Among these, Defendant’s vehicle was backed

up to a washed-out ditch with the driver’s side door and trunk standing open. Officer Reams, the

London, Kentucky Director of Public Safety Emergency Management, drove a marked car to the

scene that day. Defendant stood in the driver’s side door of the vehicle facing Reams and, when the

two made eye contact, Defendant began to run. Officer Reams recalled that sheriff’s deputies

pursued Defendant on foot while Reams exited his vehicle and remained at the scene.

        At the scene, Officer Reams approached Defendant’s vehicle “to make sure there wasn’t

anybody laying in the back seat.” (J.A. at 68) Finding no one in Defendant’s vehicle, Officer Reams

secured three individuals present at the scene by keeping their hands in plain view. Later, when the

deputies had Defendant in custody, Officer Reams searched Defendant’s vehicle. He found no

contraband or paraphernalia in the trunk, but on the floor in front of the driver’s seat, Reams


                                                 2
                                              No. 06-5354

observed a black box that resembled an eight-track tape. Reams “keyed in on that because eight-

track tapes are way out.” (Id. at 71) He picked it up and discerned that it was a small box covered

in black electrical tape. The officers untaped the box, opened it, and found a substance that appeared

to be crushed-up pseudoephedrine, a substance used in manufacturing methamphetamine.

       Officer Reams stated that the search of another vehicle at the scene revealed in “plain view

on the passenger’s side of the vehicle, . . . a purse that was sitting open, [which contained] a small

bag of what was suspected to be methamphetamine.” (J.A. at 75) In that vehicle, officers also found

a “snort straw,” a syringe, and a spoon. (Id. at 75-77) Finally, Officer Reams testified that

methamphetamine may be used in several ways: a user could smoke it, snort it, eat it, and shoot it

up. (Id. at 70) Thus, he said, use paraphernalia might include syringes, aluminum foil, knives, razor

knives, or snort straws, among other things.

       Deputy Sheriff Zanet testified that, when Defendant took off running, Sergeant Sizemore

followed Defendant within close range, while Zanet himself ran behind Sergeant Sizemore. The

chase continued for 200 to 300 yards, and throughout the officers continually implored Defendant

to stop. Eventually, Defendant dove into a patch of cattails at the edge of a pond, and the officers

went in after him. The officers directed Defendant to show his hands, but he refused. Deputy Sheriff

Zanet took hold of Defendant’s hands and placed them behind his back, and then conducted a brief

pat-down while Defendant remained on the ground. They then stood Defendant up and walked out

of the cattails, and handcuffed Defendant.1 At this point, the officers conducted a “more thorough

search” of Defendant, which Zanet described as a “search incident to arrest.” (J.A. at 96) Zanet


       1
           Defendant testified that the officers arrested him for driving under the influence.

                                                    3
                                            No. 06-5354

testified that he recovered a large wad of money on Defendant’s person ($1,900), as well as two

small bags containing a white crystal substance and a crystal, respectively. However, they found no

use paraphernalia on Defendant’s person, and none in the patch of cattails where they apprehended

him.

         Wagoner, a drug analyst with the Kentucky State Police crime lab, testified that the bags

found inside the black box contained 55.797 grams2 of 82 percent pure methamphetamine.

Wagoner’s calculations revealed that the bags contained 45.757 grams of actual or pure

methamphetamine.        The bags recovered from Defendant’s person held 2.605 grams of a

methamphetamine and dimethyl sulfone mixture.3 Wagoner concluded that the mixture consisted

of 63 percent methamphetamine, for a total of 1.641 grams of actual or pure methamphetamine. At

the close of Wagoner’s testimony, the district court accepted the methamphetamine into evidence.

         The court found Gray, a special agent for the DEA, qualified to testify as an expert witness

as to the standard dosage units and the average rate of intoxication from methamphetamine use.

Gray testified that 2.6 grams of methamphetamine would sell for “in the neighborhood of $150 to

$250.”       (J.A. at 229)   Additionally, Gray rendered an opinion that possession of crystal



         2
         Testimony throughout trial consistently referenced the same weight calculations as indicated
by Ms. Wagoner. As will later be discussed, the jury returned a special verdict finding Defendant
guilty of possessing 47.398 grams of actual or pure methamphetamine, and 59.165 grams of a
mixture containing methamphetamine. We note that the jury’s actual or pure methamphetamine
calculation clearly follows from the testimony at trial, but that the calculation with respect to the
methamphetamine mixture appears to be slightly inaccurate. At any rate, it does not bear on the
questions before us today.
         3
         Dimethyl sulfone is more typically a nutritional supplement used for horses, but also serves
as a cutting agent.

                                                  4
                                            No. 06-5354

methamphetamine along with dimethyl sulfone is consistent with “possession with intent to

distribute, because of the cutting agent.” (Id. at 230) Gray went on to opine that possession of “just

methamphetamine . . . and the tools to use the methamphetamine” would be consistent with

possession for personal use. (Id.) As Gray put it, “there’s no reason to have a cutting agent unless

you were attempting to make more methamphetamine.” (Id.) Gray indicated that absence of any

paraphernalia suggests the methamphetamine was intended for resale, not personal use. He further

stated that the presence of $1,900 cash suggests the methamphetamine was for sale, not use. Gray

estimated that 55.79 grams of methamphetamine “as a block” would sell for approximately $5,000.

(Id. at 233) If mixed with 55 grams of a cutting agent like dimethyl sulfone, the 110 grams of

mixture would sell for twice as much. Finally, Gray testified that methamphetamine produced in

Kentucky meth labs is typically 30 to 75 percent pure, whereas methamphetamine produced in

Mexico averages 80 to 85 percent pure.

       At the close of the government’s proof, Defendant moved for a judgment of acquittal. The

district court found that the government had met its burden at that point and denied the motion.

       Defendant testified in his own behalf. Defendant stated that he went to his uncle Glen

Collier’s house on June 1, 2005 to push a lawn mower into Glen Collier’s barn for storage.

Defendant admitted running from the police, and that the officers found money and drugs on his

person, but said that those drugs were for personal use. Defendant denied ownership of the black

box recovered from his car, and disclaimed all knowledge of the box. Defendant testified that the

$1,900 was part of an inheritance from his father. Defendant denied distributing or selling

methamphetamine that day.


                                                  5
                                             No. 06-5354

        On cross-examination, Defendant asserted that he used dimethyl sulfone to stretch out his

methamphetamine for personal use “because [he’s] not rich.” (J.A. at 261) He testified that he

planned to use the $1,900 in his pocket to pay bills that day because it was the first of the month.

Defendant indicated that he began to run when the officers approached because he perceived the

officer’s Escalade to be an escalator. (Id. at 262-63) Later, Defendant stated it was because he had

drugs in his pocket. Still later, Defendant explained, “Every time I see the police, I run.” (Id. at 267)

Lastly, Defendant admitted to a previous felony conviction for selling methamphetamine.

        At the close of all the evidence, Defendant again moved for a judgment of acquittal, which

the court again denied. The court conducted a jury instruction conference and, once instructions

were finalized, charged the jury. That same day, the jury convicted Defendant of possession with

intent to distribute 59.165 grams of a mixed substance containing a detectible amount of

methamphetamine or, alternatively, 47.398 grams of actual methamphetamine. Also that day, the

district court sentenced Defendant to serve 480 months of imprisonment, to be followed by eight (8)

years of supervised release. Defendant timely appealed, asserting various challenges to his

conviction and sentence.

                                           DISCUSSION

I.      THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN FAILING TO
        INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF POSSESSION.

        A.      Standard of Review

        We review challenges to the district court’s failure to give a lesser included offense

instruction for abuse of discretion. United States v. Ursery, 109 F.3d 1129, 1135 (6th Cir. 1997).

        B.      Jury Instructions

                                                   6
                                            No. 06-5354

       Defendant contends that the district court should have instructed the jury on the lesser

included offense of possession. Defendant posits that, on the evidence before it, a rational jury could

have concluded that he possessed the methamphetamine for personal use, and not with the intent to

distribute. According to Defendant, the district court agreed to charge the lesser included offense,

but ultimately failed to do so. The government counters that Defendant expressly withdrew his

request for a lesser included offense instruction. The government is correct. Therefore, we find no

abuse of discretion.

       During the jury instruction conference, the following exchange occurred:

       [DEFENSE COUNSEL]:              . . . I believe that there has been sufficient testimony
                                       that this could be only a possession case, a finding of
                                       possession against [Defendant]. . . .

       THE COURT:                      Lesser included offense?

       [DEFENSE COUNSEL]:              Lesser included offense. That’s what I’m getting at.
                                       So if there is one available, I believe lesser included
                                       would be appropriate.

       THE COURT:                      Mr. West [the prosecutor]?

       [PROSECUTOR]:                   He’s entitled to it, your Honor.

       THE COURT:                      Do the parties want to draft the special verdict form on
                                       that issue? Let’s talk. What would be your position
                                       with respect to the verdict form that the jury would
                                       submit, if they answer not guilty as to the special
                                       verdict form that’s currently attached? The question
                                       would be – I would need to expand the first sentence:
                                       “We, the jury, find [Defendant] guilty of the offense
                                       of possession with intent to distribute,” essentially the
                                       language used in the indictment.

                                       “If you find not guilty, then proceed to special
                                       Instruction No. 2.” Special Instruction No. 2 would

                                                  7
                                             No. 06-5354

                                        read: “We, the jury, find [Defendant] guilty of
                                        possession.”

        [DEFENSE COUNSEL]:              Yes, sir.

(J.A. at 285-86) The prosecution agreed with the proposed instruction, and the district court briefly

recessed the jury instruction conference to locate the Sixth Circuit Pattern Jury Instructions. Thus,

the district court intended to instruct the jury on the lesser included offense.

        However, following the brief recess in the jury instruction conference, Defendant very clearly

withdrew his request:

        [DEFENSE COUNSEL]:              . . . Before the recess we discussed the issue of lesser
                                        included offense. I discussed that with Mr. Collier, and
                                        he has instructed me not to request the lesser included.

        THE COURT:                      I got that message. Mr. Collier, that is your request at
                                        this time?

        THE DEFENDANT:                  As far as I can gather from my knowledge of the law,
                                        yes.

        THE COURT:                      And your discussions with counsel; is that correct?
                                        And you have also had a chance to take [sic] to your
                                        attorney about that?

        THE DEFENDANT:                  Yes. He advised me against it.

        THE COURT:                      You don’t have to tell me about the advice, I just
                                        wanted to make sure you discussed it with him.

(J.A. at 288-89) As a result, the district court did not instruct the jury on the lesser included offense

of possession.

        “[T]he defendant is entitled to an instruction on a lesser included offense if the evidence

would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.”


                                                    8
                                             No. 06-5354

Keeble v. United States, 412 U.S. 205, 208 (1973); see also Fed. R. Crim. P. 31(c). A lesser

included offense instruction is typically warranted where

        (1) a proper request is made; (2) the elements of the lesser offense are identical to
        part of the elements of the greater offense; (3) the evidence would support a
        conviction on the lesser offense; and (4) the proof on the element or elements
        differentiating the two crimes is sufficiently disputed so that a jury could consistently
        acquit on the greater offense and convict on the lesser.

United States v. Monger, 185 F.3d 574, 576 (6th Cir. 1999) (emphasis added).

        The district court did not abuse its discretion. Although defense counsel initially requested

a lesser included offense instruction, Defendant himself later instructed counsel to withdraw the

request, and Defendant persisted in doing so notwithstanding counsel’s advice to the contrary.

Where, as here, the defendant expressly withdraws his request for a lesser included offense

instruction, we conceive of it as trial strategy, and not reversible error on the district court’s part.

See Look v. Amaral, 725 F.2d 4, 9 (1st Cir. 1984) (no error in court’s failure to give lesser included

offense instruction where defense counsel waived it); United States v. Lopez Andino, 831 F.2d 1164,

1171 (1st Cir. 1987) (where defense counsel did not request lesser included offense instruction and

made no objection to given instructions, court did not err); United States v. Seijo, 537 F.2d 694, 698-

99 (2d Cir. 1976) (same); Higgins v. Wainwright, 424 F.2d 177, 178 (5th Cir. 1970) (trial not

fundamentally unfair where the defendant made no request for the lesser included offense

instruction); United States v. Meyers, 443 F.2d 913, 913 (9th Cir. 1971) (defendant’s failure to

request instruction construed as trial strategy, and court did not err).

        The crux of Defendant’s argument is that the evidence would have permitted a rational jury

to find Defendant possessed methamphetamine only for personal use, and not with intent to


                                                   9
                                             No. 06-5354

distribute. Without a proper request for an instruction on possession – and certainly where

Defendant’s counsel requested the instruction, the district court intended to so instruct the jury, and

Defendant subsequently expressly withdrew the request – we need not consider whether a rational

jury could have found, on alternate instructions rejected by Defendant, that Defendant possessed the

methamphetamine for personal use, and not for distribution. Consequently, no abuse of discretion

occurred.

II.     SUFFICIENT EVIDENCE EXISTED TO CONVICT DEFENDANT OF POSSESSION
        WITH INTENT TO DISTRIBUTE METHAMPHETAMINE, PURSUANT TO 21
        U.S.C. § 841.

        A.      Standard of Review

        On a sufficiency of the evidence challenge, we consider whether, “after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original). “Circumstantial evidence alone is sufficient to sustain a conviction and such

evidence need not remove every reasonable hypothesis except that of guilt.” United States v.

Vannerson, 786 F.2d 221, 225 (6th Cir. 1986).

        B.      Sufficiency of the Evidence

        Defendant claims that the government failed to prove the elements of possession with intent

to distribute beyond a reasonable doubt. Defendant’s counsel moved for a judgment of acquittal both

after the close of the government’s case-in-chief, and at the end of trial, thereby properly preserving

Defendant’s sufficiency of the evidence challenge. Having carefully reviewed the trial record, we




                                                   10
                                            No. 06-5354

hold that sufficient evidence existed to permit a rational jury to convict Defendant of possession with

intent to distribute.

        Title 21 U.S.C. § 841(a)(1) makes it unlawful to “knowingly or intentionally . . . possess with

intent to manufacture, distribute, or dispense, a controlled substance.” At trial, the government bore

the burden of proving that Defendant (1) knowingly (2) possessed a controlled substance (3) with

intent to distribute it. Id.; United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995). Viewing

the evidence in the light most favorable to the prosecution, a rational jury could find each of these

elements beyond a reasonable doubt.

        First, testimony at trial establishes that Defendant actually possessed methamphetamine, a

Schedule II controlled substance, on his person. Additionally, the record shows Defendant

constructively possessed the methamphetamine recovered from his car inasmuch as Defendant stood

next to the driver’s seat directly adjacent to the black box just prior to the chase, and Officer Reams

secured the vehicle until it could be searched. See United States v. Draper, 888 F.2d 1100, 1103 (6th

Cir. 1989) (acknowledging that constructive possession sustains a conviction under § 841(a)(1));

United States v. Ushery, 968 F.2d 575, 581 (6th Cir. 1992) (“Constructive possession exists where

one exercises ownership, dominion, or control over an object or the premises on which it is

concealed.”) (emphasis added). The crime lab drug analyst, Wagoner, testified that the black box

in Defendant’s car and the bags in his pocket contained methamphetamine. Finally, the district court

accepted the methamphetamine into evidence.

        Second, overwhelming circumstantial evidence supports a finding that Defendant intended

to distribute the methamphetamine. See United States v. Faymore, 736 F.2d 328, 334 (6th Cir. 1984)


                                                  11
                                            No. 06-5354

(“[T]he intent to distribute can be inferred . . . from circumstantial evidence of possession of large

quantities, or an estimated street value of the drug.”). Wagoner testified that the methamphetamine

recovered from the black box in Defendant’s car tested 82 percent pure, as compared to the 63

percent pure methamphetamine found in his pocket. One of the bags found on Defendant’s person

contained a mixture of methamphetamine and a cutting agent, dimethyl sulfone, a fact which DEA

Agent Gray found consistent with “possession with intent to distribute, because of the cutting agent.”

(J.A. at 230) As Gray put it, “there’s no reason to have a cutting agent unless you were attempting

to make more methamphetamine.”            (Id.)   Agent Gray estimated the street value of the

methamphetamine Defendant possessed at approximately $5,000, but noted the street value would

rise to $10,000 if Defendant mixed the methamphetamine with equal parts of a cutting agent.

       Moreover, the officers recovered $1,900 from Defendant’s pocket, which further supports

a finding that Defendant was actively engaged in the sale of methamphetamine. The evidence

militates against a finding that Defendant merely possessed the methamphetamine for personal use.

First, Defendant possessed a rather large quantity of methamphetamine, taking together the drugs

recovered from his pocket and his car. Second, testimony proffered by Officer Reams and Deputy

Sheriff Zanet establishes that Defendant had no use paraphernalia in his car or on his person. At

trial, Gray expressed his opinion that possession of “just methamphetamine . . . and the tools to use

the methamphetamine” would be consistent with possession for personal use, but that absence of any

paraphernalia suggests the methamphetamine is intended for resale. (Id.) Finally, Defendant

admitted on cross-examination to previous felony convictions for selling methamphetamine.




                                                  12
                                            No. 06-5354

          Lastly, a rational jury could conclude that Defendant knowingly possessed the

methamphetamine. Defendant stood next to the driver’s seat of his car when the police approached

and ran immediately upon making eye contact with Officer Reams. Cf. United States v. Garrido,

467 F.3d 971, 985 (6th Cir. 2006) (finding the defendant’s changing temperament during a search

of his vehicle, which ultimately uncovered significant quantities of heroin, relevant to knowledge).

During the later search of his vehicle, Officer Reams recovered the black box of methamphetamine

from the floor in front of the driver’s seat. Further, from the time Defendant ran until the officers

searched his vehicle, Officer Reams insured that no other person present at the scene had access to

the vehicle. Consequently, we hold that sufficient evidence supports Defendant’s conviction under

21 U.S.C. § 841(a)(1).

III.      DEFENDANT’S SENTENCE WAS REASONABLE UNDER BOOKER v. UNITED
          STATES.

          A.     Standard of Review

          We review challenges to the district court’s sentencing determinations for reasonableness.

Rita v. United States, 127 S. Ct. 2456, 2459 (2007); United States v. Booker, 543 U.S. 220, 261

(2005).

          B.     Booker Reasonableness

          Defendant contends that the district court applied the United States Sentencing Guidelines

(hereinafter “the Guidelines”) as though they were mandatory, and failed to give proper

consideration to the § 3553(a) factors. We conclude that Defendant’s sentence is both procedurally

and substantively reasonable.



                                                 13
                                            No. 06-5354

       On March 6, 2006, immediately following the close of Defendant’s trial, the district court

conducted a sentencing hearing. Defendant’s Pre-Sentence Investigation Report (“PSR”) set forth

a base offense level of 30 on the basis of § 2D1.1 of the Guidelines as applied to 47.39 grams of

actual methamphetamine possessed. The PSR adopted a two-level enhancement under § 3C1.1 for

obstruction of justice, and applied a five-level enhancement under § 4B1.1 for being a career

offender, yielding a total offense level of 37. On the basis of a rather extensive criminal history, the

PSR placed Defendant in criminal history category VI. Together, Defendant’s total offense level and

criminal history category yielded an advisory Guidelines range of 360 months to life imprisonment.

In pertinent part, the district court adopted the findings in Defendant’s PSR, including the advisory

Guidelines range.

       The district court heard from defense counsel on the factors under 18 U.S.C. § 3553(a).

Defense counsel proffered that Defendant suffers from Hepatitis C, among other medical conditions;

that Defendant was 51 years old at the time of sentencing, and thus a lower sentence would

adequately deter him from further criminal activity; and that Defendant previously “paid his dues”

on crimes listed in the PSR’s account of criminal history. (J.A. at 391-92) Defendant then spoke

on his own behalf to express that he had learned from his mistake. In response, the government

highlighted Defendant’s “very extensive criminal history,” which began at the age of 18 and includes

“very serious narcotics violations, including possession, trafficking, even reckless homicide.” (Id.

at 393) Accordingly, the government requested a sentence near the top of the Guidelines range,

which it argued was necessary “to afford adequate deterrence from future criminal conduct and to

protect society.” (Id.)


                                                  14
                                             No. 06-5354

        The district court then stated as follows:

        . . . I have considered all the information that has been submitted. . . .

                The first factor that the Court has to consider in determining the
        appropriateness of the sentence is what is sufficient but not greater than necessary to
        comply with a number of statutory factors, and one is the need to afford adequate
        deterrence from future criminal conduct. Another is related, and that is the need to
        protect the public from future crimes of this defendant.

               When I look at [Defendant’s] criminal history, it leads me to believe that if
        – when he’s released, he’s going to go back to his – to the same kind of activity. It
        seems like he can’t stop himself from doing that. And so a lengthy sentence is
        necessary in order to promote both of those two purposes.

                I will take into account [Defendant’s] medical condition and will recommend
        to the Bureau of Prisons that he be incarcerated at a facility that is able to address his
        medical needs, including hepatitis C.

                When you look at the purity of the methamphetamine that was involved in
        this particular case, it also causes you to conclude that [Defendant] was certainly
        trafficking in a very high purity meth, it’s one that can and does cause severe
        consequences in this area.

               When I look at his criminal history and his background, the history and the
        characteristics of this defendant, the negatives do outweigh any positives that are
        presented. He’s been part of a drug culture and he’s been in the criminal justice
        system since 1972, I believe. As a matter of fact, he’s got several felony convictions
        that were not assessed criminal history points.

                So for those reasons, the Court believes that a lengthy sentence is necessary
        to serve the purposes that I’ve outlined, as well as to reflect the seriousness of the
        offense and to promote respect for the law.

(J.A. at 394-95) The district court ultimately sentenced Defendant to 480 months of imprisonment.

At the close of the hearing, the district court afforded counsel an opportunity to object to the sentence

as imposed. Defense counsel stated, “we would just object to – voice the same objections we filed

earlier. We have no objection to the sentencing hearing, though.” (Id. at 397)


                                                   15
                                               No. 06-5354

        Because Defendant failed to object prior to the conclusion of the sentencing hearing, we

review Defendant’s Booker challenge under a plain error standard. The defendant bears the burden

of proof on plain error review, and must demonstrate (1) error, (2) that the error is plain, (3) that the

error affects the defendant’s substantial rights, and (4) that it “seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” United States v. Oliver, 397 F.3d 369, 378 (6th Cir.

2005). Defendant cannot establish plain error because the district court did not err under Booker and

its progeny in sentencing Defendant.

        Defendant’s sentence is reasonable under Booker and Rita. Review for reasonableness has

both a substantive and procedural component. Rita, 127 S. Ct. at 2462, 2468; United States v. Webb,

403 F.3d 373, 383 (6th Cir. 2005) (“[W]e read Booker as instructing appellate courts . . . to consider

not only the length of the sentence but also the factors evaluated and the procedures employed by

the district court in reaching its sentencing determination.”). Defendant contends that the district

court treated the Guidelines range as mandatory and failed to properly consider the § 3553(a) factors.

We construe Defendant’s brief as challenging both the procedural and substantive reasonableness

of his sentence and, thus, evaluate both.4

                1.       Procedural Reasonableness

        Following the Supreme Court’s decision in Booker, district court judges must continue to

consult the Guidelines, but may do so only for an advisory starting point. Booker, 543 U.S. at 744-

45 (“The district courts, while not bound to apply the Guidelines, must consult those Guidelines and



        4
        Although Defendant did not expressly challenge the substantive reasonableness of his
sentence, he did argue that it violates the Eighth Amendment by virtue of its length.

                                                     16
                                            No. 06-5354

take them into account when sentencing.”). The district court must also consider the factors set forth

in 18 U.S.C. § 3553(a) in sentencing, and those factors may well support a variance from the

advisory Guidelines range. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006); see also

Rita, 127 S. Ct. at 2467-68. The question may then arise, as here, whether the district court properly

analyzed the relevant § 3553 factors.

       In its recent pronouncement in Rita, the Supreme Court faced this precise question. Rita

directs the sentencing judge to “set forth enough to satisfy the appellate court that he has considered

the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Id. at 2468. The sufficiency of the sentencing judge’s explanation depends upon

circumstances such as the “appropriateness of brevity or length, conciseness or detail, when to write,

[and] what to say.” Id. For example, where the defendant advances “nonfrivolous reasons for

imposing a different sentence, . . . the judge will normally go further and explain why he has rejected

those arguments.” Id.

       In the instant case, the record clearly reflects that the district court considered Defendant’s

§ 3553(a) arguments, but ultimately concluded that Defendant’s age and medical condition did not

outweigh countervailing considerations – specifically, the need to deter Defendant from committing

future similar crimes and to protect society from Defendant, especially in light of his extensive

criminal history. See Rita, 127 S. Ct. at 2469 (“The record makes clear that the sentencing judge

listened to each argument.”); United States v. Liou, 491 F.3d 334, 340 (6th Cir. 2007); United States

v. Robinson, — F.3d —, 2007 WL 2112787, at *4 (6th Cir. 2007). Although the district judge

imposed a sentence within the advisory Guidelines range, he understood Defendant’s need to receive


                                                  17
                                            No. 06-5354

appropriate medical care, as evidenced by his recommendation to the Bureau of Prisons that

Defendant be placed in a facility with adequate medical resources to treat his hepatitis C. See id.

The § 3553(a) arguments Defendant advanced do not amount to the sort of “nonfrivolous reasons”

likely to merit a particularly lengthy or detailed rationale on the record, especially in view of the

rather weighty considerations that militate against a more lenient sentence in this case. See Rita, 127

S. Ct. at 2468; Robinson, 2007 WL 2112787, at *5. In accordance with Rita, the district judge

sufficiently explained his reasons for rejecting Defendant’s argument under § 3553 for a more lenient

sentence.

       Defendant further contends that the district judge treated the Guidelines as mandatory. It is

true that the district judge did not expressly acknowledge the advisory nature of the Guidelines on

the record. However, before he actually imposed a sentence, the district judge said that Defendant’s

sentence followed from “the Sentencing Reform Act of 1984, as amended and modified by the

Supreme Court’s decisions in Booker and Fanfan.” (J.A. at 396) Additionally, as evident from the

preceding discussion, the district judge considered and weighed the § 3553(a) factors prior to

sentencing Defendant. We find this sufficient to signal that the district judge understood that Booker

rendered the Guidelines advisory, and that he gave the Guidelines only advisory effect in issuing the

sentence here challenged. Cf. Rita, 127 S. Ct. at 2469 (finding “context and the record make clear”

the district judge’s reasoning). Consequently, we find that Defendant’s sentence was procedurally

reasonable.

               2.      Substantive Reasonableness




                                                  18
                                            No. 06-5354

       Reviewing the length of sentences properly calculated under the Guidelines, we apply a

rebuttable presumption of reasonableness. Williams, 436 F.3d at 708; see also Rita, 127 S. Ct. at

2462 (concluding that an appellate court may adopt a presumption of reasonableness). Here,

Defendant’s 480 month sentence falls within the properly calculated advisory Guidelines range of

360 months to life imprisonment. We therefore credit Defendant’s sentence with a rebuttable

presumption of reasonableness.

       Yet, Defendant’s sentence is not exempt from review solely because it falls within the

advisory Guidelines range. See Rita, 127 S. Ct. at 2465 (noting that presumptions of reasonableness

“rather than having independent legal effect, simply recognize[] the real-world circumstance that

when the judge’s discretionary decision accords with the [Sentencing] Commission’s view of the

appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is

reasonable”). Section 3553(a) factors, if sufficient to justify a departure from the Guidelines range,

can serve as rebuttal evidence to call into question the reasonableness of a Guideline sentence. The

crux of substantive reasonableness review is whether “the district court followed its statutory

mandate to ‘impose a sentence sufficient, but not greater than necessary’ to comply with the purposes

of sentencing in section 3553(a)(2).” United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006);

see also United States v. Wilms, — F.3d —, 2007 WL 2077367, at *3-4 (6th Cir. 2007).

       In this case, Defendant’s sentence falls within the advisory Guidelines range and, thus, we

afford it a rebuttable presumption of reasonableness. See Williams, 436 F.3d at 708. Section 3553(a)

factors invoked by Defendant – limited to his age and medical condition – do not sufficiently impugn

the reasonableness of a within-Guidelines range sentence. Here, the district court expressly found


                                                 19
                                             No. 06-5354

a sentence of 480 months of imprisonment “sufficient but not greater than necessary” to deter

Defendant from future criminal conduct and to protect society, in light of Defendant’s rather lengthy

criminal history. Accordingly, we hold that Defendant’s sentence is also substantively reasonable.

IV.     DEFENDANT’S OTHER CHALLENGES

        Defendant also asserts several claims which, in the main, he failed to assert below. These

challenges consist of Defendant’s claim that the district court erred in failing to sua sponte exclude

the methamphetamine, that 21 U.S.C. § 841 violates the Commerce Clause to the U.S. Constitution,

and that his sentence constitutes cruel and unusual punishment of the kind prohibited by the Eighth

Amendment.

        A.      Admissibility of Methamphetamine

        Defendant acknowledges that he failed to object at trial to the admission of the

methamphetamine recovered on his person and in his automobile. Defendant contends that “the

Judge should have, sua sponte, conducted an inquiry into the facts of the search and seizure . . .

pursuant to Rule of Evidence 103(d), and found that said search was illegal, and suppressed all the

fruits of that search.” (Def.’s Br. at 24-25) Defendant’s claim constitutes an attempt to raise new

suppression arguments on appeal where Defendant wholly failed to move for suppression on any

basis before the district court. Defendant’s failure to timely challenge the admissibility of the

methamphetamine precludes appellate review.

        Motions to suppress evidence must be raised before trial. Fed. R. Crim. P. 12(b)(3)(C).

District courts have discretion to set deadlines for pretrial motions to suppress. Id. at 12(c). Further,

where a defendant fails to bring a pretrial motion to suppress evidence, the party waives that defense,


                                                   20
                                             No. 06-5354

and can only obtain relief from the district court upon a showing of good cause. Id. at 12(e). Here,

the court set a deadline for motions to suppress, requiring them to be filed at least five days before

the pretrial motion hearing on September 7, 2005. Defendant failed to file any suppression motion

within the deadline. In fact, Defendant never did file a motion to suppress the evidence on Fourth

Amendment grounds prior to trial. Rather, on October 4, 2005, the morning of trial, Defendant

brought a “motion to preclude evidence” on the basis of an allegedly incomplete chain of custody.

During proceedings before the start of trial, the district court denied the motion to preclude on the

merits.

          Where a defendant fails to timely file a pretrial motion to suppress evidence, he waives

objections to that evidence on appeal. United States v. Lopez-Medina, 461 F.3d 724, 738 (6th Cir.

2006); United States v. Crismon, 905 F.2d 966, 969 (6th Cir. 1990) (“[O]bjections that appear for

the first time on appeal are conclusively deemed to be waived.”); United States v. Worthington, 698

F.2d 820, 824 (6th Cir. 1983). In the instant case, Defendant failed to file a pretrial motion to

suppress the methamphetamine recovered from his vehicle and his person at the scene.             Quite

simply, Defendant waived this challenge pursuant to Rule 12(e).

          Defendant’s motion to preclude, filed just before trial and untimely pursuant to the district

court’s pretrial order, does not require a different result. The motion to preclude alleged that no

proper chain of custody could be shown. First, it is unclear whether a motion “[m]erely raising the

possibility of tampering” can constitute a motion to suppress for purposes of Federal Rule of

Criminal Procedure 12. See United States v. Allen, 106 F.3d 695, 700 (6th Cir. 1997). Absent clear

evidence that public officers tampered with the evidence at issue, challenges to the chain of custody


                                                   21
                                            No. 06-5354

typically go to the weight of the evidence, and not its admissibility. See United States v. Levy, 904

F.2d 1026, 1030 (6th Cir. 1990); Allen, 106 F.3d at 700. In any event, we need not answer that

question today because the motion to preclude was untimely. See United States v. Obiukwu, 17 F.3d

816, 819 (6th Cir. 1994); United States v. Oldfield, 859 F.2d 392, 396 (6th Cir. 1988) (“This court

strictly applies Rule 12(b), and has repeatedly held that failure to raise 12(b) motions in a timely

fashion precludes appellate review.”). Thus, notwithstanding Defendant’s eleventh-hour motion to

preclude, Defendant waived objections to the admissibility of the methamphetamine under Rule

12(e).

         Having initially waived the suppression arguments, Defendant retained the option to seek

relief from the waiver by demonstrating good cause. See Fed. R. Crim. P. 12(e). The record reflects

no attempt on Defendant’s part to demonstrate good cause before the district court, or even to assert

these challenges during trial. Nor does Defendant’s brief on appeal address or explain his Rule 12(e)

waiver. Accordingly, Defendant’s “omission below to make a facial showing of the ‘good cause’

required” by Rule 12(e) precludes our review. See Crismon, 905 F.2d at 970.

         We have in the past exercised our discretion to review for plain error where a defendant

timely moves for suppression at the district court on some basis and loses, and later raises new

grounds for suppression on appeal. See Lopez-Medina, 461 F.3d at 739; United States v. Critton,

43 F.3d 1089, 1094 (6th Cir. 1995); but see United States v. Sachs, 801 F.2d 839, 846-47 (6th Cir.

1986); Worthington, 698 F.2d at 823-24. This case is not before us today, as Defendant brought no

timely pretrial motion to suppress. At any rate, review for plain error pursuant to Rule 52(b) extends

only to claims “forfeited,” and not to rights “waived.” United States v. Olano, 507 U.S. 725, 731-33


                                                 22
                                            No. 06-5354

(1993). Rule 12(e) expressly provides that a party “waives” evidentiary objections not timely raised.

Thus, Rule 52(b) does not permit this court to review challenges waived by virtue of a party’s failure

to timely file any pretrial suppression motion. See United States v. Scarborough, 43 F.3d 1021, 1025

(6th Cir. 1994) (noting that, while Rule 52(b) permits review for plain error, “there is a distinction

between rights ‘forfeited’ and rights ‘waived,’” and finding defendant waived his Fourth Amendment

claim by failing to assert it below); see also Wayne R. LaFave, 6 Search & Seizure § 11.7(e) (4th

ed. 2006) (“Indeed, it may well be that under the current language of the Federal Rules of Criminal

Procedure, appellate review under the plain error rule is foreclosed.”). This interpretation of Rule

12(e) renders the provision meaningful within the larger context of the Federal Rules of Criminal

Procedure: to permit plain error review of challenges wholly waived under Rule 12 would “render

[the Rule] a nullity,” as it “would add nothing to the forfeiture principle of Rule 52(b).” Cf. United

States v. Weathers, 186 F.3d 948, 955 (D.C. Cir. 1999); cf. also United States v. Anderson, 472 F.3d

662 (9th Cir. 2006) (also noting “[s]uch a result most likely was not intended by the Supreme Court

or Congress”). Further, it is not inconsistent with our Circuit’s earliest precedent on the matter,

which declined to review waived claims for plain error. See Sachs, 801 F.2d at 846-47; Worthington,

698 F.2d at 823-24.

       Finally, we have in the past observed, in holdings or dicta, that we lack “jurisdiction” to

consider claims not properly raised in accordance with Federal Rule of Criminal Procedure 12. See,

e.g., Lopez-Medina, 461 F.3d at 738; United States v. Critton, 43 F.3d 1089, 1093 (6th Cir. 1995);

Crismon, 905 F.2d at 969; Sachs, 801 F.2d at 847. We take note of the Supreme Court’s recent

exhortations that the term “jurisdiction” should not be loosely invoked, and that we must clarify the


                                                 23
                                            No. 06-5354

line between jurisdictional bars and other rules precluding or limiting review. See Arbaugh v. Y &

H Corp., 546 U.S. 500, 510-16 (2006); Eberhart v. United States, 546 U.S. 12, 17-18 (2005)

(concluding that the time limit set forth in Federal Rule of Criminal Procedure 33(a) is a non-

jurisdictional, “claim-processing rule[]”); Kontrick v. Ryan, 540 U.S. 443, 454-55 (2004) (holding

litigant’s failure to adhere to time requirement in Federal Rules of Bankruptcy Procedure did not

deprive court of subject matter jurisdiction). Indeed, at least one previous opinion of this court

expressed doubt that Rule 12(e) erects a jurisdictional barrier to review. See United States v. Hayes,

218 F.3d 615, 619-20 (6th Cir. 2000). Going forward, in light of these recent cases, we will

undoubtedly speak less readily in terms of “jurisdiction” when faced with a defendant’s failure to

timely file a pretrial suppression motion, as required by Rule 12. However, nomenclature aside, the

rule established in our precedent remains steadfast, firmly planted in principles of waiver.5 We

adhere to it today, and hold only that Defendant waived any Fourth Amendment suppression

challenge by failing to comply with Rule 12.

       B.      Commerce Clause Challenge to 21 U.S.C. § 841

       Defendant contends that “no evidence offered by the State demonstrat[es] where [Defendant]

purchased the methamphetamine or establish[es] where the drugs originated.” (Def.’s Br. at 26) In

essence, Defendant’s argument appears to be that 21 U.S.C. § 841(a)(1) should not have been

applied to him because “the connection to interstate commerce is attenuated” in his case. (Id. at 27)


       5
          In fact, although we have often used the term “jurisdiction,” equally as many cases reason
that failure to bring a pretrial motion to suppress constitutes waiver. See United States v. Nance, 481
F.3d 882, 885 n.1 (6th Cir. 2007); United States v. Wortman, 47 F.3d 1172, 1995 WL 31589, at *1
(6th Cir. Jan. 26, 1995) (unpublished); Obiukwu, 17 F.3d at 819; Crismon, 905 F.2d at 969; Oldfield,
859 F.2d at 396-97.

                                                  24
                                             No. 06-5354

We review Defendant’s constitutional challenge to § 841 de novo. See United States v. Suarez, 263

F.3d 468, 476 (6th Cir. 2001) (citing United States v. Smith, 182 F.3d 452, 455 (6th Cir. 1999)).

        Defendant failed to raise any claim before the district court that application of 21 U.S.C. §

841(a)(1) in his case violates the Commerce Clause. Accordingly, Defendant waived this argument

for purposes of appeal. See Taft Broadcasting Co. v. United States, 929 F.2d 240, 243 (6th Cir.

1991) (“As a rule, this court declines to entertain arguments not presented in the first instance to the

district court.”).

        Alternatively, if considered on the merits, Defendant’s claim nevertheless fails. First, a

previous decision of this Circuit appears to control. In United States v. Tucker, 90 F.3d 1135, 1140

(6th Cir. 1996), the defendants argued that 21 U.S.C. § 860(a), which doubles the maximum

punishment for possession with intent to distribute controlled substances within 1,000 feet of a

school, violates the Commerce Clause. The Tucker court stated that “§ 860 addresses a clearly

commercial activity that has long been within federal power to regulate” and that “drug trafficking

is an ‘economic enterprise’ that substantially affects interstate commerce in numerous clear ways.”

Id. Because “[a] necessary element of a § 860 offense . . . involves ‘activities that arise out of or are

connected with a commercial transaction, which viewed in the aggregate, substantially affects

interstate commerce,” the statute did not violate the Commerce Clause. Id. at 1141.

        Much of the analysis in Tucker was based on the Supreme Court’s decision in United States

v. Lopez, 514 U.S. 549 (1995). There, the Supreme Court stated:

        . . . [W]e have identified three broad categories of activity that Congress may regulate
        under its commerce power. First, Congress may regulate the use of the channels of
        interstate commerce. Second, Congress is empowered to regulate and protect the
        instrumentalities of interstate commerce, or persons or things in interstate commerce,

                                                   25
                                            No. 06-5354

       even though the threat may come only from intrastate activities. Finally, Congress’
       commerce authority includes the power to regulate those activities having a
       substantial relation to interstate commerce, i.e., those activities that substantially
       affect interstate commerce.

Id. at 558-59. With respect to the last category, “the proper test requires an analysis of whether the

regulated activity ‘substantially affects’ interstate commerce.” Id. at 559.

       Whether on its face or as applied to Defendant, 21 U.S.C. § 841(a)(1) does not violate the

Commerce Clause. Like § 860, § 841(a)(1) “addresses a clearly commercial activity that has long

been within federal power to regulate.” See Tucker, 90 F.3d at 1140. Even if the drugs originated

in Kentucky, and were intended to be sold in Kentucky, the Commerce Clause nevertheless gives

Congress the authority to criminalize the intrastate sale of methamphetamine inasmuch as it

“substantially affects” interstate commerce. Evidence on the record indicates that methamphetamine

produced in Mexico is being transported to and sold in Kentucky. To the extent that distributors can

claim that their drugs, in fact, originated in Kentucky (perhaps notwithstanding their origin in

Mexico), or that the availability of drugs in Kentucky impacts the demand for Mexican-produced

methamphetamine, intrastate production and sale indirectly affects interstate commerce. See

Wickard v. Filburn, 317 U.S. 111, 125 (1942) (“[E]ven if appellee’s activity be local and though it

may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it

exerts a substantial economic effect on interstate commerce and this irrespective of whether such

effect is . . . ‘direct’ or ‘indirect.’”). Thus, Defendant’s Commerce Clause challenge must fail.

       C.      Defendant’s Eighth Amendment Challenge

       Finally, Defendant contends that his “sentence should be vacated because it is

disproportionate to the crime committed even factoring in his past criminal history and the totality

                                                 26
                                            No. 06-5354

of the circumstances concerning his arrest.” (Def.’s Br. at 35) As previously stated, Defendant’s

advisory Guidelines range spanned from 360 months’ imprisonment to life. The district court

sentenced Defendant to 480 months of imprisonment. The crux of Defendant’s claim appears to be

that this sentence is functionally like a sentence to life imprisonment. We review this constitutional

challenge de novo. Suarez, 263 F.3d at 476 (citing Smith, 182 F.3d at 455).

       First, Defendant did not raise an Eighth Amendment challenge to his sentence before the

district court at his sentencing hearing, or in his sentencing memorandum. As a result, Defendant

failed to preserve this challenge for appeal, and we deem it waived. See United States v. Organek,

65 F.3d 60, 62 (6th Cir. 1995) (finding the defendant’s Eighth Amendment challenge not cognizable

on appeal because he failed to raise it at his sentencing hearing); see also Taft Broadcasting Co., 929

F.2d at 243.

       At any rate, Defendant’s Eighth Amendment challenge fails on the merits. Defendant claims

that this court “when reviewing Eighth Amendment challenges, adheres to the ‘narrow

proportionality principle’ articulated in Harmelin v. Michigan.” (Def.’s Br. at 35) Yet, Harmelin

does not control the result here. Harmelin itself stated that “[p]roportionality review is one of

several respects in which we have held that ‘death is different,’ and have imposed protections that

the Constitution nowhere else provides.” Harmelin v. Michigan, 501 U.S. 957, 994 (1991)

(plurality); see also Organek, 65 F.3d at 63 (“This Court ‘will not engage in a proportionality

analysis except in cases where the penalty imposed is death or life in prison without possibility of

parole.’”). Defendant has not been sentenced to death; rather, Defendant has been sentenced to serve

480 months of imprisonment. Even if Defendant’s sentence is functionally equivalent to a life


                                                  27
                                          No. 06-5354

sentence in his case, it does not exceed the statutory maximum sentence of life imprisonment under

21 U.S.C. § 841(a). See 21 U.S.C. § 841(b). “[A] sentence within the statutory maximum set by

statute generally does not constitute ‘cruel and unusual punishment.’” Austin v. Jackson, 213 F.3d

298, 302 (6th Cir. 2000). Consequently, Defendant’s Eighth Amendment claim is also unavailing.

                                        CONCLUSION

       For the foregoing reasons, we AFFIRM.




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