                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 16a0392n.06

                                Nos. 15-3641, 15-3697, 15-3753
                                                                                      FILED
                                                                                 Jul 12, 2016
                                                                            DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
DARDISI ALEXANDER (15-3641); JOSE                       )       COURT FOR THE
MAGUEYAL (15-3697); TERRANCE WHARTON                    )       NORTHERN DISTRICT OF
(15-3753),                                              )       OHIO
                                                        )
       Defendants-Appellants.                           )




BEFORE:        CLAY, ROGERS, and McKEAGUE, Circuit Judges.

       ROGERS, Circuit Judge. Dardisi Alexander, Jose Magueyal, and Terrance Wharton each

pled guilty to participating in the same cocaine distribution conspiracy.         Alexander was

sentenced to 96 months’ imprisonment, Magueyal to 63 months, and Wharton to 48 months.

They now individually appeal their sentences.         Alexander argues that his attorney was

constitutionally ineffective during sentencing, Magueyal claims that the district court improperly

varied his sentence upwards after granting a departure for substantial assistance pursuant to

18 U.S.C. § 3553(e), and Wharton contends that his above-Guidelines sentence is substantively

unreasonable. Their arguments lack merit for the reasons that follow.
Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


                                                     I. Alexander

        Alexander argues that his counsel was ineffective for failing to object to an error in the

calculation of his criminal history category.1              Alexander’s presentence investigation report

concluded that Alexander should be assessed eleven criminal history points, resulting in a

criminal history category of V. Alexander’s counsel successfully objected to the assessment of

one criminal history point for a disorderly conduct charge, bringing Alexander’s total criminal

history points to ten and leaving his criminal history category at V. Combining his criminal

history category of V with his total offense level of 23 yielded an applicable Guidelines range of

84–105 months. Alexander was sentenced to a midrange term of 96 months.

        Alexander’s appeal concerns the assessment of a criminal history point for a violation of

Canton Municipal Code § 513.03, which is entitled “presence in place or premises where

designated controlled substances used.” His counsel objected to this assessment on the ground

that it was a “minor misdemeanor” that carries no jail time, but did not object on the ground that

U.S.S.G. § 4A1.2(c)(2) provides that local-ordinance violations are not counted in assessing

criminal history points. Alexander argues that his counsel’s failure to object on the ground that

§ 4A1.2(c)(2) excludes local-ordinance violations from criminal-history scores constituted

ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984). Had his counsel

objected on the proper grounds, Alexander argues, his criminal history score would have been

nine and his criminal history category would have been IV. With a criminal history score of IV,

the applicable Guidelines range would have been 70–87 months, rather than the 84–105 month

advisory range that led to Alexander’s 96-month sentence.




1
 The appeal waiver in Alexander’s plea agreement reserved his right to pursue claims of ineffective assistance of
counsel on appeal or on collateral attack.

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Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


       We decline to address Alexander’s ineffective-assistance-of-counsel claim on this direct

appeal. “As a general rule, a defendant may not raise ineffective assistance of counsel claims for

the first time on direct appeal, since there has not been an opportunity to develop and include in

the record evidence bearing on the merits of the allegations.” United States v. Martinez, 430

F.3d 317, 338 (6th Cir. 2005) (quoting United States v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990)).

While we will review an ineffective-assistance-of-counsel claim on direct appeal when “the

record is adequately developed to allow the court to properly assess the merits of the issue,”

United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999), here there is no evidence in the

record as to why Alexander’s counsel decided not to argue that the Canton Municipal Code

§ 513.03 conviction should be excluded from Alexander’s criminal history score as a local-

ordinance violation. Without an evidentiary hearing, we have “no way of knowing whether a

seemingly unusual or misguided action by counsel had a sound strategic motive or was taken

because the counsel’s alternatives were even worse.” Massaro v. United States, 538 U.S. 500,

505 (2003). Therefore, because it is not possible at this time to determine whether Alexander’s

counsel provided constitutionally ineffective representation, we leave Alexander to develop a

record and make these arguments in a 28 U.S.C. § 2255 claim.

       We also decline the Government’s invitation to decide Alexander’s claim on direct

appeal. The Government urges that we should decide Alexander’s ineffective-assistance-of-

counsel claim at this time because, the Government contends, Alexander’s claim fails on the

merits. We have previously addressed a defendant’s ineffective-assistance-of-counsel claim on

direct appeal when the trial record made clear that the defendant could not prevail in showing

deficiency or prejudice. See United States v. Johnson, 765 F.3d 644, 648–49 (6th Cir. 2014);

Fortson, 194 F.3d at 736; United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995). In this case,



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Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


however, it is not clear on this record that Alexander’s counsel was not deficient or that

Alexander did not suffer prejudice.

       Section 4A1.2(c)(2) prohibits counting violations of local ordinances in criminal history

scores, but excepts “those violations that are also violations under state criminal law.” The

Government argues that Alexander’s conviction for Canton Municipal Code § 513.03 may be

counted under § 4A1.2(c)(2) because “§ 513.03 is the local equivalent of Ohio Rev[ised] Code

§ 2925.11.” However, contrary to the Government’s arguments, Ohio Revised Code § 2925.11

is arguably not identical to Canton Municipal Code § 513.03. Canton Municipal Code § 513.03

provides that:

       No person shall enter, visit or remain in or about any place or premises . . . where
       any controlled substance or illegal drug abuse instrument . . . is being unlawfully
       manufactured, sold, dispensed, furnished, given away, stored or used with
       knowledge that such activity is occurring and for the purpose of engaging in such
       illegal drug-related activity.

In contrast, Ohio Revised Code § 2925.11 makes it unlawful for any person to “knowingly

obtain, possess, or use a controlled substance or a controlled substance analog.”             Canton

Municipal Code § 513.03 appears to criminalize more conduct than does Ohio Revised Code

§ 2925.11: An individual need not “obtain, possess, or use” a controlled substance in order for

that individual to “enter, visit, or remain” in a place where illegal drug activity is occurring while

having the purpose of engaging in such illegal drug activity. Thus, a violation of Canton

Municipal Code § 513.03 may not necessarily constitute a violation of Ohio Revised Code

§ 2925.11. Accordingly, because it is not clear that failing to argue that U.S.S.G. § 4A1.2(c)(2)

prohibited the use of Wharton’s Canton Municipal Code § 513.03 conviction was not deficient

and would not have resulted in prejudice, we do not resolve Alexander’s ineffective-assistance-

of-counsel claim at this time.



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Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


                                              II. Magueyal

        Magueyal claims that the district court lacked authority to use § 3553(a) factors to

sentence above a range calculated below a statutory mandatory minimum on the basis of

substantial assistance.2 Originally, Magueyal faced a mandatory minimum sentence of 120

months for his involvement in the cocaine distribution conspiracy. However, the Government,

pursuant to 18 U.S.C. § 3553(e), U.S.S.G. § 5K1.1, and U.S.S.G. § 3E1.1, moved for a nine-level

downward departure—six levels for substantial assistance and three levels for acceptance of

responsibility. Immediately after his arrest, Magueyal had met with law enforcement, admitted

responsibility, provided law enforcement with information about persons involved in the

conspiracy, offered to testify against co-defendants, and participated in controlled calls with co-

defendants. Despite a concern that “this is quite a dramatic reduction given . . . the scope and

extent and the length of time the conspiracy has been up and running,” the district court granted

the Government’s motion. This brought Magueyal’s total offense level to 21, which, when

combined with his criminal history category of I, resulted in a Guidelines range of 37–46

months.

        Subsequently, when deciding what sentence to impose, the district court considered

factors under 18 U.S.C. § 3553(a). The district court noted that Magueyal played an “extensive”

role in the conspiracy and that “this conspiracy would not have operated and would not have

taken place” without Magueyal. Based on this, the district court concluded that the maximum

sentence under Magueyal’s departure-based Guidelines range did not “reflect the seriousness of

the offense” and “is not sufficient” to constitute “just punishment” or “adequate deterrence to

protect the public.” Accordingly, because the district court determined that there “should be

2
 The appeal waiver in Magueyal’s plea agreement reserved his right to appeal any sentence that “exceeds the
maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines.” The
Government does not rely upon this waiver.

                                                   -5-
Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


significant consequences for [Magueyal’s] criminal actions,” the district court varied above the

46-month-maximum departure-based Guidelines sentence and imposed a 63-month sentence.

Magueyal appeals, arguing that our precedent forbids a district court from considering § 3553(a)

factors to vary above a Guidelines range when the district court, pursuant to § 3553(e), is

sentencing the defendant below the otherwise-applicable mandatory minimum.

       The district court did not err in using § 3553(a) factors to reduce the extent of its

previously granted departure pursuant to § 3553(e), resulting in a sentence still well below the

original mandatory minimum. It would perhaps have been conceptually clearer for the district

court to have decided that the defendant’s assistance was not worth the full departure requested

by the Government, see United States v. Grant, 636 F.3d 803, 817 (6th Cir. 2011) (en banc). In

any event, the effect of a reduction under § 3553(e) is to lower the “floor” under which the

district court may not sentence the defendant; it does not affect the district court’s ability to

sentence a defendant above that floor. Without a § 3553(e) reduction, the applicable floor is the

mandatory minimum imposed by statute—here, 120 months. The district court may impose a

sentence above the mandatory minimum based on § 3553(a) factors, see, e.g., United States v.

Vowell, 516 F.3d 503, 512–13 (6th Cir. 2008), but lacks the authority to impose a sentence below

it, see, e.g., United States v. Marshall, 736 F.3d 492, 500–01 (6th Cir. 2013). Thus, had the

Government not made a motion for a reduction under § 3553(e), the district court could have

used § 3553(a) factors to sentence Magueyal to a term of imprisonment greater than 120 months

(assuming it would have been reasonable to do so). The granting of a § 3553(e) reduction

effectively lowered the applicable floor—here, to 37 months. Accordingly, after the district

court granted the Government’s § 3553(e) motion, it had discretion to use § 3553(a) factors to

increase Magueyal’s sentence above the newly established floor of 37 months.



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Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


       Our conclusion also finds support in Grant.          In Grant, we recognized that when

considering the extent to which a sentence should be reduced for substantial assistance, a district

court “might properly consider a sentence below a certain point inappropriate for a defendant

convicted of a heinous crime, and thus value his cooperation less.” 636 F.3d at 817; see also

U.S.S.G. § 5K1.1(a)(1) (requiring the district court to evaluate “the significance and usefulness

of the defendant’s assistance”). That is essentially what the district court did here—the district

court acknowledged that Magueyal provided substantial assistance to the Government by

granting the § 3553(e) motion, but ultimately found that a sentence below 63 months was

insufficient to adequately punish and deter Magueyal for his serious offense. Grant imagines

that such an analysis would occur all at once while the district court is deciding whether to grant

the Government’s § 3553(e) motion, see 636 F.3d at 817, but that the district court in this case

broke out his reasoning into discrete steps—first recognizing that Magueyal had provided

substantial assistance by granting the Government’s § 3553(e) motion, but then imposing an

upward variance based on his belief that a sentence below 63 months would be inappropriate—

rather than grouping the entire analysis at the § 3553(e) stage is merely a matter of semantics.

Ultimately, Grant suggests that district courts may consider factors similar to those embodied in

§ 3553(a) to sentence the defendant to a prison term longer than that requested in the

Government’s § 3553(e) motion, which is what happened here. Therefore, the district court’s

consideration of the seriousness of Magueyal’s crime as a justification for varying above the

Guidelines range was not unreasonable.

       Contrary to Magueyal’s arguments, our precedent does not prohibit the district court’s

consideration of § 3553(a) factors in granting the higher sentence in this case. Our prior cases all

involve attempts by district courts or defendants to use factors unrelated to substantial assistance



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Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


in order to depart further below the mandatory minimum and do not address attempts by district

courts to vary above a Guidelines range that was set after a § 3553(e) reduction, making the

instant case a matter of first impression. Our prior cases hold that when a district court departs

below the mandatory minimum pursuant to § 3553(e), factors unrelated to the defendant’s

substantial assistance—such as § 3553(a) factors unrelated to the defendant’s cooperation with

the Government—may not be used to further reduce a defendant’s sentence below the otherwise-

applicable mandatory minimum. See United States v. Williams, 687 F.3d 283, 286 (6th Cir.

2012). These cases are based on the rationale that district courts must have specific authorization

from Congress in order to impose a sentence below a mandatory minimum, and that the

authorization that Congress did give to the district courts to sentence below the mandatory

minimum is limited to factors relating to substantial assistance. See id. (citing United States v.

Hawn, 446 F. App’x 793, 796–97 (6th Cir. 2012)); Grant, 636 F.3d at 812–14. In Williams, we

relied specifically on our explanation in Hawn that “the district court only had the limited

authority to impose a sentence below the statutory minimum to reflect Hawn’s substantial

assistance and it exceeded that authority by varying further below the minimum for reasons other

than Hawn’s substantial assistance.” 687 F.3d at 286 (emphasis added) (quoting Hawn, 446 F.

App’x at 797). The statutory floor, in other words, was the basis for precluding the use of

§ 3553(a) factors to vary in Hawn and Williams. That rationale—that district courts must have

specific authorization from Congress to sentence a defendant below the mandatory minimum—is

not applicable when, as is the case here, the district court was not reducing Magueyal’s sentence

for reasons beyond what could be supported by substantial assistance.




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Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


                                              III. Wharton

        Wharton appeals his above-Guidelines sentence of 48 months’ imprisonment as

substantively unreasonable.3 Wharton had a total offense level of seventeen and a criminal

history category of III, resulting in a Guidelines range of 30–37 months’ imprisonment. The

district court varied eleven months upward primarily because Wharton had been previously

convicted of a federal cocaine conspiracy charge and because the sentence resulting from that

prior conviction—46 months’ imprisonment and 3 years’ supervised release—apparently did not

deter him from again becoming involved in a cocaine distribution conspiracy. In the prior case,

the district court had concluded that his criminal history category overrepresented the seriousness

of his criminal history, so that Wharton received a break and was sentenced below the otherwise-

applicable Guidelines range. While Wharton remained clean during his supervised release, he

became involved in the instant cocaine conspiracy approximately one year after his supervised

release ended. Given this history, the district court reasoned that a sentence above 37 months

was warranted because Wharton “apparently, tragically, has not learned” from his prior

imprisonment, where “46 months . . . appears to have been ineffective” in deterring him from

reoffending. Wharton argues on appeal that the district court gave unreasonable weight to his

prior conviction, did not provide sufficient reasoning for its upward variance, imposed a sentence

that is disparate when compared to his co-defendants, and disregarded positive factors.

        Wharton’s arguments do not warrant reversal. First, the district court did not abuse its

discretion in emphasizing Wharton’s prior offense. Although “[a] sentence may be considered

substantively unreasonable when the district court . . . gives an unreasonable amount of weight to

any pertinent factor,” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008), it is also true


3
 The appeal waiver in Wharton’s plea agreement reserved his right to appeal any sentence that “exceeds the
maximum of the sentencing imprisonment range determined under the advisory Sentencing Guidelines.”

                                                   -9-
Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


that “[a] district court may place great weight on one factor if such weight is warranted under the

facts of the case,” United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013) (citing United

States v. Zobel, 696 F.3d 558, 571–72 (6th Cir. 2012)). Here, the weight that the district court

placed on Wharton’s prior conviction was warranted because Wharton committed the same type

of offense as his prior conviction shortly after finishing the prior conviction’s supervised release

term. We have previously ruled that an above-Guidelines sentence was substantively reasonable

when previous, shorter sentences failed to deter the defendant from committing the same type of

offense. United States v. Polihonki, 543 F.3d 318, 325–26 (6th Cir. 2008). As in Polihonki, it

was therefore not unreasonable for the district court in this case to impose an above-Guidelines

sentence when a within-Guidelines sentence would have been lower than a sentence that has

already been shown to be ineffective at deterring Wharton from becoming involved in cocaine

distribution conspiracies. Further, the district court clearly explained its reasoning when it stated

that “there must be a consequence” for “[i]ndividuals who put cocaine, addictive substances into

our communities,” especially for “those who continue to do so after having a prior conviction

and having prior opportunities to modify their behavior.” Thus, Wharton’s argument that the

district court did not provide sufficient reasoning for the upward variance also fails.

       Second, because district courts are not required to consider sentence disparities with

respect to co-defendants, United States v. Walls, 546 F.3d 728, 737 n.3 (6th Cir. 2008),

Wharton’s argument that the district court failed to compare his sentence to other co-defendants

who received shorter sentences misses the mark. Moreover, the district court made clear that

“any disparity is driven by the fact and circumstances and the history and characteristics of the

defendant primarily and the fact that his prior federal conviction and sentence for a very similar

related offense did not appear to have any deterrent effect.” Accordingly, the disparity between



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Nos. 15-3641, 15-3697, 15-3753, United States v. Alexander, et al.


Wharton and his co-defendants is not unreasonable given the fact that Wharton’s prior

conviction made his circumstance quite different than the circumstances of his co-defendants.

       Finally, to the extent that Wharton’s argument that the district court disregarded positive

factors “ultimately boils down to an assertion that the district court should have balanced the

§ 3553(a) factors differently,” his argument is beyond the scope of our appellate review. United

States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008). There is no evidence that the district court

disregarded the positive factors Wharton cites—to the contrary, the district court specifically

discussed Wharton’s age, substance abuse history, educational and work history, good mental

health, family, and living situation. While Wharton may not agree with it, the district court’s

conclusion that the positive factors did not outweigh the fact that a within-Guidelines sentence

would not likely deter Wharton from reoffending was not an unreasonable balancing of the

§ 3553(a) factors. Therefore, because Wharton’s argument essentially amounts to a contention

that the district court should have weighed the § 3553(a) factors differently, it lacks merit.

                                                 IV.

       For the foregoing reasons, we affirm the sentences imposed by the district court.




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