                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 11a0106n.06

                                            No. 09-6331                                  FILED
                                                                                      Feb 14, 2011
                            UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                           ON APPEAL FROM THE
v.                                                         UNITED STATES DISTRICT
                                                           COURT FOR THE WESTERN
ANTHONY McCASTER,                                          DISTRICT OF TENNESSEE

          Defendant-Appellant.



                                                      /

Before:          KEITH, MERRITT, and MARTIN, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Defendant-appellant Anthony McCaster appeals

his sentence on grounds of procedural and substantive reasonableness. For the following reasons,

we AFFIRM.

                                        I. BACKGROUND

          Memphis police stopped McCaster for a traffic violation and found 129.4 grams of marijuana

and a stolen pistol in his car. Additionally, McCaster gave a statement to police explaining that he

sold marijuana and powder cocaine, regularly buying as much as an ounce or two of powder cocaine

at a time intended for resale. McCaster pleaded guilty to one count of possession with intent to

distribute marijuana, in violation of 21 U.S.C. § 841, and one count of possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
No. 09-6331
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Page 2

       The Probation Office prepared a Presentence Investigation Report recommending that

McCaster’s base offense level for count one should be fourteen pursuant to United States Sentencing

Guidelines § 2D1.1. In reaching this recommendation, the Probation Office considered not only the

129.4 grams of marijuana McCaster had when he was arrested, but also one ounce of powder

cocaine—a typical amount purchased by McCaster for resale. Count two carried a statutory

minimum sentence of five years of imprisonment to be served consecutive to his sentence for count

one. The Probation Office also applied a two-level reduction for accepting responsibility, resulting

in a total offense level of twelve. McCaster’s criminal history category was VI.

       At his sentencing hearing, the United States District Court for the Western District of

Tennessee followed the recommendations of the Probation Office. The resultant advisory Guidelines

sentencing range was two years and six months to three years and one month of imprisonment for

count one, and the court sentenced McCaster to two years and ten months of imprisonment. The

court imposed the statutory minimum sentence of five years of imprisonment for count two. The two

sentences are to be served consecutively, totaling seven years and ten months. Additionally,

McCaster received three years of supervised release.

                                         II. DISCUSSION

       On appeal, McCaster claims that his sentence is procedurally and substantively unreasonable.

We review these claims for plain error because McCaster did not object after the district court issued

the sentence and asked him if he had any objections. United States v. Berry, 565 F.3d 332, 340 (6th

Cir. 2009) (citing United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004)). Therefore, to

succeed on appeal, McCaster must identify a clear or obvious error that affected his rights and the
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Page 3

fairness, integrity, or public reputation of the judicial proceedings. Id. (citing United States v.

Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).

        First, McCaster claims that his sentence is procedurally unreasonable because the district

court failed to address his request for a below-Guidelines sentence for count one. If the court had

applied the Guidelines considering only the drugs actually found on McCaster, his sentencing range

for count one would have been six months to one year of imprisonment. Considering the ounce of

powder cocaine that McCaster regularly purchased for resale, as the court could properly do,

increased the range to two years and six months to three years and one month of imprisonment.

McCaster’s attorney argued that this increase over-represented the seriousness of the crime; adding

at least two years to McCaster’s sentence for drugs that police never found. The court did not

expressly address this specific request, but this did not constitute error, let alone a clear and obvious

one. Cf. id. The district court was not required to “explicitly state that it has considered and rejected

each of [McCaster]’s arguments” because the sentence was “imposed within the applicable

Guidelines range.” Id. (citing Rita v. United States, 551 U.S. 338, 357 (2007)). Furthermore, the

court sufficiently explained reasons for the sentence rather than giving no reason whatsoever, see id.

at 340-41 (citing 18 U.S.C. § 3553(c)), such as McCaster’s criminal history, his personal

information, and the need for deterrence. Accordingly, McCaster has not established plain error

through his first claim.

        Second, McCaster claims that his sentence for count one is substantively unreasonable

because it is excessive for his actual offense and it deters cooperation with police. The sentence is

presumptively reasonable because it falls within the applicable sentencing range. Cf. United States
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USA v. McCaster
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v. Walls, 546 F.3d 728, 737 (6th Cir. 2008). However, “[a] sentence is substantively unreasonable

if the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails

to consider pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent

factor.” Id. (citation omitted). Here, the district court recited lengthy reasons supporting the

sentence it issued as we already mentioned. Additionally, the district court emphasized that the

sentence was appropriate when juxtaposed with McCaster’s extensive criminal history, his young

age, and his relationship with his family and young children. From the age of twelve to twenty-three

when McCaster was sentenced, he had accumulated a litany of convictions ranging from drug

possession to theft to violent crimes. The court recognized that McCaster must “change” during his

time in prison if he wants to be a better father to his children and son to his parents. Accordingly,

McCaster has not established plain error through his second claim.

        Furthermore, we acknowledge that cooperation between defendants and police should be

encouraged, and we highlight that district courts may, and often do, take cooperation into

consideration when determining sentences. That courts may also give defendants higher sentences

based upon admissions they make while attempting to cooperate, such as occurred here, reveals

conflicting motivations in our judicial process. Nevertheless, we cannot say that this conflict created

plain error, or even an abuse of discretion, by the district court here.

                                         III. CONCLUSION

        Based on the foregoing reasons, we AFFIRM McCaster’s sentence.
