                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0111n.06

                                        Case No. 19-5273

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              Feb 20, 2020
UNITED STATES OF AMERICA,                              )                  DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )        ON APPEAL FROM THE
v.                                                     )        UNITED STATES DISTRICT
                                                       )        COURT FOR THE EASTERN
GARRY SEAN RAMONE DRAKE, JR.,                          )        DISTRICT OF KENTUCKY
                                                       )
       Defendant-Appellant.                            )                             OPINION



BEFORE: GILMAN, McKEAGUE, and KETHLEDGE, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendant Garry Drake appeals the district court’s above-

Guidelines sentence as substantively unreasonable. For the reasons set forth below, we find that

the district court’s sentence was reasonable and AFFIRM.

       Mr. Drake pled guilty to distribution of fentanyl resulting in an overdose death, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Specifically, he admitted that he sold a mixture containing

fentanyl to Phillip Jennings, who then sold some of the mixture to M.R. When M.R. ingested the

fentanyl, it caused him to fatally overdose.

       At Mr. Drake’s sentencing hearing, the government recommended a sentence of

240 months—the statutory minimum and recommended Sentencing-Guidelines term—and the

defense agreed. But the district court rejected the recommendation and varied upwards, instead

sentencing Mr. Drake to 300 months. The court explained that it varied upwards because it
Case No. 19-5273, United States v. Drake


“d[id]n’t believe . . . that 240 months would be a sufficient sentence. It would unduly diminish the

seriousness of the offense and perhaps would not provide sufficient general deterrence for others

engaged in this type of activity.” The court explained that “when a person’s child dies” it doesn’t

“matter if the death is at the end of a gun versus the end of a needle[.] It’s the same thing.” Although

drug-trafficking offenses may be non-violent, the district court reasoned, they can have serious,

deadly consequences, and Mr. Drake’s sentence needed to reflect those serious consequences.

Therefore, when the court considered “all of the [§ 3553(a) sentencing] factors, the need to protect

the public, the need to provide both specific, as well as general deterrence, the need for the sentence

to reflect the seriousness of the offense, and provide a just punishment” it concluded that 300

months was the appropriate sentence. See 18 U.S.C. § 3553(a). The court recognized that Mr.

Drake had no criminal history and that he was remorseful, and said, “I certainly do take that into

account, quite frankly, in not imposing a higher term of incarceration.”

       We review Mr. Drake’s “above-Guidelines sentence using a ‘deferential abuse-of-

discretion standard.’” United States v. Nixon, 664 F.3d 624, 625–26 (6th Cir. 2011) (quoting

United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)). Although above-Guidelines sentences

are not entitled to a presumption of reasonableness, we also don’t presume they are unreasonable.

United States v. Gall, 552 U.S. 38, 47 (2007). It is Mr. Drake’s burden to show that his sentence

is substantively unreasonable. See United States v. Woodard, 638 F.3d 506, 510 (6th Cir. 2011)

(citing United States v. Houston, 529 F.3d 743, 756 (6th Cir. 2008)).

       On appeal, Mr. Drake argues that the district court’s sentence was substantively

unreasonable for three specific reasons: (1) the variance was unjustified under the totality of the

circumstances, particularly given Mr. Drake’s lack of criminal history; (2) the variance was

unjustified because the court considered M.R.’s death in varying upward from the Guidelines, even



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though that fact was already reflected in the Guidelines term; and (3) the sentence was

unreasonable because it created an unwarranted sentencing disparity between Mr. Drake and Mr.

Jennings, who both sold the fentanyl that killed M.R. None of Mr. Drake’s arguments can carry

his burden.

       First, Mr. Drake argues that the variance imposed by the district court was not justified by

the totality of the circumstances, especially considering his clean criminal record. But the district

court considered Mr. Drake’s lack of criminal history. And Mr. Drake doesn’t contend that the

district court failed to consider any of the other § 3553(a) factors. Moreover, the district court

emphasized that Mr. Drake claimed not to know that the substance he sold the decedent was

fentanyl rather than heroin; that the court had heard that same claim in numerous cases; that dealers

like the defendant “are taking a risk of selling a drug [i.e., fentanyl] for $40 that’s killing people”;

and that the “cost” of taking that risk “needs to be a very expensive cost of doing business.” All of

these considerations were important under § 3553(a), and none of them were already reflected in

the Guidelines range. So his argument about the totality of the circumstances “boils down to an

assertion that the district court should have balanced the § 3553(a) factors differently, [which] is

‘simply beyond the scope of our appellate review, which looks to whether the sentence is

reasonable, as opposed to whether in the first instance we would have imposed the same

sentence.’” United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (quoting United States v.

Ely, 468 F.3d 399, 404 (6th Cir. 2006)).

       Next, Mr. Drake argues that the district court couldn’t justify its variance from the

Guidelines by relying on the fact that his drug sale resulted in a death because the Guidelines

“already accounted for the overdose death.” But “[t]his court has consistently rejected [this]

general argument: that a sentence is substantively unreasonable whenever a district court considers



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conduct in imposing a variance that was already used to calculate the Guidelines range.” United

States v. Heard, 749 F. App’x 367, 372 (6th Cir. 2018) (collecting cases); see also id. at 381

(“Double-counting is not, in and of itself, a problem.”) (Moore, J., dissenting). So, Mr. Drake’s

argument that the variance was unreasonable simply because the district court double-counted

must fail. There is no per se rule against it.

        And even if there are specific cases where double-counting in this way is impermissible,

see id. at 381 (Moore, J., dissenting), it would be Mr. Drake’s burden to prove that this is one of

those cases, see Woodard, 638 F.3d at 510 (citing Houston, 529 F.3d at 756). But Mr. Drake

doesn’t articulate any reason why double-counting in his particular case was unjustified. He simply

alerts us to the fact that the district court double-counted and argues that this itself makes the

variance unreasonable. This is not enough to carry his burden.

        Last, Mr. Drake argues that his sentence is substantively unreasonable because the district

court created an unwarranted sentencing disparity between him and Mr. Jennings, who directly

sold the heroin-fentanyl mixture to M.R. After all, § 3553(a)(6) says that district courts should

“avoid unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Mr. Drake questions how his conduct

and Mr. Jennings’s conduct could be any more similar. And how could Mr. Jennings have a cleaner

record than Mr. Drake, who has no criminal history? Yet their sentences differ by 10 years.

        Although this argument has facial appeal, it cannot succeed. This court has consistently

held that § 3553(a)(6) is concerned with national disparities and not “disparities between one

individual’s sentence and another individual’s sentence,” even when “the two are co-defendants.”

United States v. Bacon, 617 F.3d 452, 460 (6th Cir. 2010) (quoting United States v. Simmons,




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501 F.3d 620, 623 (6th Cir. 2007)). This is because there are many valid reasons to sentence even

co-defendants differently. United States v. Carson, 560 F.3d 566, 586 (6th Cir. 2009).

       The district court did not explain why it sentenced Mr. Jennings to 180 months and Mr.

Drake to 300 months. But it didn’t have to, since Mr. Drake didn’t raise this argument at his

sentencing hearing. See United States v. Sierra-Villegas, 774 F.3d 1093, 1103 (6th Cir. 2014)

(“[T]he district court may consider the defendant’s sentence in comparison with that of co-

defendants at sentencing, but need not do so; it is a matter of discretion.”); United States v.

Wallace, 597 F.3d 794, 803 (6th Cir. 2010) (holding that when the defense raises an argument

about disparity between the sentences of co-conspirators, the district court must consider the

argument and explain its basis for rejecting it). In fact, Mr. Drake went one step beyond neglecting

to challenge the sentencing disparity: he himself recommended a sentence of 240 months, which

is itself 5 years longer than Jennings’s 180-month sentence. Thus, it is especially reasonable that

the district court didn’t explain the difference between Mr. Drake’s and Mr. Jennings’s sentences.

       Because Mr. Drake has failed to show that his sentence was substantively unreasonable,

we AFFIRM.




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Case No. 19-5273, United States v. Drake


   RONALD LEE GILMAN, Circuit Judge, dissenting. The majority concludes that Garry

Drake’s above-Guidelines 300-month sentence is substantively reasonable.              I respectfully

disagree. The district court failed to adequately explain why Drake, in particular, should receive

a sentence 60 months above the 240-month Guidelines term. It also engaged in double counting

without a compelling justification.

                                         I. BACKGROUND

       Drake pleaded guilty to knowingly and intentionally distributing fentanyl, in violation of

21 U.S.C. § 841(a)(1), which resulted in a death, an aggravating factor under 21 U.S.C. § 841

(b)(1)(C). Under United States Sentencing Guideline (U.S.S.G.) § 2D1.1(a)(2), the base offense

level for violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) is 38. Drake then received a reduction of

3 levels for accepting responsibility for his crime. The resulting Guidelines range for Drake was

168 months to 210 months of imprisonment based on his net offense level of 35 and his lack of a

criminal history. But because Drake’s drug crime resulted in a death, the statutory minimum term

of imprisonment of 240 months applied under 21 U.S.C. § 841(b)(1)(C). This statutory minimum

thus became the Guidelines term for Drake.

       The district court correctly calculated Drake’s 240-month Guidelines term of imprisonment

at the sentencing hearing. It explained that “in other cases involving deaths of individuals from

this specific substance, fentanyl, [it has] gone above the guideline range and above mandatory

minimums based upon a variety of factors.” Despite noting that “every case is individual,” the

court simply listed the factors that it was required to consider under 18 U.S.C. § 3553(a).

       The court first turned to the seriousness of drug trafficking in general, suggesting that

“perhaps we should question politicians and others that say drug trafficking offenses because

they’re not violent they’re just not as serious as others” and that “when a person’s child dies, does


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Case No. 19-5273, United States v. Drake


it matter if the death is at the end of a gun versus the end of a needle? It’s the same thing.” It

further asserted that “we diminish perhaps the seriousness of drug trafficking offenses when we

say they’re not violent felonies because they do certainly have serious consequences, and

oftentimes they do result in death.” The court finally stated that a person would have to be “living

under a rock” to not understand that they were dealing “something more dangerous” than heroin,

in reference to Drake’s claim that he had mistakenly believed he had sold heroin to M.R.

       Turning to Drake’s “particular case,” the court again recited the factors that it was required

to consider under 18 U.S.C. § 3553(a): the defendant’s remorse, his lack of criminal history, the

need to protect the public, the need to provide both specific and general deterrence, the need for

the sentence to reflect the seriousness of the offense, and the need to provide just punishment. It

then summarily concluded, based on all of these factors, to vary upwards beyond the Guidelines

term by 60 months.

                                           II. ANALYSIS
A. Standard of review

       As the majority explains, this court reviews “above-Guidelines sentence[s] using a

‘deferential abuse-of-discretion standard.’” United States v. Nixon, 664 F.3d 624, 625–26 (6th Cir.

2011) (quoting United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)). Under substantive-

reasonableness review, we consider whether “the court placed too much weight on some of the

§ 3553(a) factors and too little on others in sentencing the individual.” United States v. Rayyan,

885 F.3d 436, 442 (6th Cir. 2018).

       Sentences that fall within the Guidelines range may be considered presumptively

reasonable, but sentences that vary above or below the Guidelines “are afforded no such

presumption.” United States v. Herrera-Zuniga, 571 F.3d 568, 582 (6th Cir. 2009). Thus, when

the district court deviates from the Guidelines, the appellate court “may consider the extent of the

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Case No. 19-5273, United States v. Drake


deviation.” Gall v. United States, 552 U.S. 38, 51 (2007). “[A] major [variance] should be

supported by a more significant justification than a minor one,” id. at 50, and “[t]he farther the

judge’s sentence [varies] from the guidelines sentence . . . [,] the more compelling the justification

based on factors in section 3553(a) must be,” United States v. Aleo, 681 F.3d 290, 299 (6th Cir.

2012) (citation and internal quotation marks omitted).

B. Substantive reasonableness

       In applying the substantive-reasonableness standard to case before us, I conclude that the

district court did not offer a sufficiently compelling reason why Drake deserved a 60-month

upward variance for his crime. This court has explained that “[w]hen a district court varies outside

the guideline range, then, we expect the court to explain what distinguishes that defendant’s case

from a typical one.” United States v. Boucher, 937 F.3d 702, 708 (6th Cir. 2019), petition for cert.

filed, No. 19-611 (U.S. Nov. 8, 2019). A district court’s concentration on the individualized facts

of each case is indeed why we afford sentencing discretion on appellate review. See id. (“[T]his

circuit gives sentencing courts broad discretion to fashion individualized, fact-driven sentences

without interference from appellate courts.”)

       The district court here, however, did nothing to explain why Drake’s case, in particular,

warranted an above-Guidelines sentence. It simply noted that it often went above the Guidelines

range in sentencing individuals who trafficked in fentanyl. The implied justification for the court’s

stated policy is that fentanyl is more dangerous than other drugs. But the law already reflects this

risk because 21 U.S.C. § 841(b)(1)(C) imposes a mandatory minimum sentence of 240 months on

drug traffickers who cause overdose deaths.

       Moreover, the district court did not delve into Drake’s specific state of mind or intent in

selling fentanyl to M.R. An individualized inquiry would have been particularly important here,



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Case No. 19-5273, United States v. Drake


where Drake claimed that he had mistakenly believed that he had been trafficking in heroin. Nor

did the court mention that Drake had pleaded guilty to knowingly and intentionally distributing

less than four grams of fentanyl, a minimum quantity for calculating base offense levels. See

U.S.S.G. § 2D1.1(c).

       The district court’s failure to provide an individualized justification is also troublesome

because the court greatly exceeded the 240-month sentence recommended by the Assistant United

States Attorney charged with Drake’s case. As the Supreme Court has explained, “[t]he United

States Attorney is the representative not of an ordinary party to a controversy, but of a

sovereignty.” Berger v. United States, 295 U.S. 78, 88 (1935). The overriding interest of the

United States Attorney is therefore “that justice shall be done.” Id. In light of the Assistant United

States Attorney’s unique role as the conscience of the people, the district court below should have

offered a more thorough explanation for its upward variance well beyond the government’s 240-

month request.

       Setting aside the district court’s failure to concentrate on the facts of Drake’s particular

case, it also muddied the waters by opining on the failure of politicians to take into account the

fatal consequences of drug trafficking in general. This justification for the court’s variance is

unpersuasive because the dire consequences of drug trafficking are directly accounted for in

Drake’s Guidelines term, as explained above. Drake would have been subject to a substantially

lower sentence under the applicable Guidelines had he not violated 21 U.S.C. § 841(b)(1)(C),

which punishes certain drug crimes resulting in death.          Indeed, the mandatory 240-month

minimum term of imprisonment would not have applied to his case at all if a death had not resulted.

       This court, moreover, has rejected similar arguments that the Guidelines did not adequately

capture the seriousness of a defendant’s offense. In Aleo, for example, the district court had



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Case No. 19-5273, United States v. Drake


determined that the Guidelines did not provide adequate punishment for a producer, possessor, and

distributor of child pornography who had molested his granddaughter while committing the

offense. But because the “guidelines took into account the very factors that the sentencing judge

said that they did not,” this court determined that the district court judge’s concern about the

severity of Aleo’s offense failed to provide a compelling justification for the variance. 681 F.3d

at 301. The Guidelines in the present case, like the Guidelines at issue in Aleo, take into account

the very factor that the district court said was not addressed.

       This brings me to Drake’s contention that “double counting” the fact that Drake’s actions

resulted in death is unwarranted. The government argues that double counting is permitted in this

circuit, citing United States v. Nixon, 664 F.3d 624, 626 (6th Cir. 2011), where this court held that

the fact “[t]hat a circumstance was addressed in the Guidelines . . . does not prevent the district

court from considering it under section 3553(a).” Nixon’s holding further explained, however, that

such double counting is permissible “so long as the court explains why the circumstance warrants

additional weight with regard to that particular defendant’s sentence.” Id. (emphasis added). As

discussed above, the district court pointed to nothing about Drake’s particular circumstances that

warranted double counting the death that had already dictated Drake’s Guidelines range.

I therefore conclude, contrary to the majority, that Drake has met his burden of explaining why

double counting is impermissible where, as his counsel points out, “the fact that death resulted is

the sole reason why Mr. Drake received an offense level of 35 for what was a $40 drug deal.”

       Finally, even if we should reject sentencing comparisons between Drake and his

codefendant under 18 U.S.C. § 3553(a)(6), this does not mean that we should shirk our duty to

consider “unwarranted disparities among similarly situated defendants nationwide.” See Boucher,

937 F.3d at 708; see also United States v. Houston, 529 F.3d 743, 752 (6th Cir. 2008) (“[T]he



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Case No. 19-5273, United States v. Drake


Guidelines themselves represent the best indication of national sentencing practices.”). If the

district court below continues to add 60 months to the sentences of defendants like Drake without

a clearer justification, such disparities will inevitably continue.

       For all of the reasons set forth above, I respectfully dissent.




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