                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0100n.06

                                           No. 07-6420                                    FILED
                                                                                       Feb 16, 2010
                          UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES of AMERICA,

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

       Defendant-Appellant.

                                                      /

Before: MARTIN and GIBBONS, Circuit Judges, and MARBLEY, District Judge.*

       BOYCE F. MARTIN, JR., Circuit Judge. Terrance Cox appeals his sentence for possession

of a controlled substance with the intent to distribute in violation of 18 U.S.C. § 841(a)(1). He

argues that the district court erred by treating the career offender provisions of the Sentencing

Guidelines as effectively mandatory. However, the district court noted its discretion in applying a

within-Guidelines sentence. We, therefore, AFFIRM the judgment of the district court.

                                                 I.

       On September 18, 2006, a federal grand jury returned an indictment charging Cox with

possession of a controlled substance with the intent to distribute in violation of section 841(a)(1).

On June 28, 2007, Cox entered a plea of guilty. After his plea, the U. S. Probation Office prepared

a presentence report. Based on the report’s calculations, Cox’s base offense level was 25. However,



       *
         The Honorable Algenon L. Marbley, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 07-6420
United States v. Cox
Page 2

Cox’s criminal history category was VI because he had 12 criminal history points, qualifying him

as a career offender and increasing his adjusted base level to 34. As he had accepted responsibility

for his actions, he also qualified for a three level reduction. Thus, his adjusted base offense level was

31, producing an advisory guideline sentencing range of 188-235 months.

        On November 19, 2007, Cox filed a position paper objecting to the presentence report, asking

the district court to consider that his advisory sentencing range under the Guidelines would have

been 70-87 months without the imposition of the career offender enhancement and requesting that

the court sentence him to a term within that range. He argued that the increase in his base offense

level based on his qualification as a career offender was excessive, especially as Congress, through

the Sentencing Commission, had recently amended the Guidelines to address the crack/powder

cocaine disparity in sentencing but had not addressed the alleged disparity in career offender

sentencing.

        A sentencing hearing was conducted on November 30, 2007. At the hearing, Cox requested

that the district court vary below the Guideline calculations of the presentence report in consideration

of the large increase in the Guideline range that occurred because of the application of the career

offender enhancement. The district court ruled that the presentence report correctly calculated the

Guideline range in accordance with an adjusted base offense level of 31 and a criminal history

category of VI. The court noted that:

        Under his criminal history category, Mr. Cox had amassed nine criminal history
        points, as I’ve already addressed, for convictions involving sale of cocaine, cocaine
        with intent to sell and evading arrest, and then I believe the others were driving
        offenses that were a little later than that. He is also assessed two criminal history
        points for the fact that Mr. Cox committed the instant offense while on parole, as
No. 07-6420
United States v. Cox
Page 3

       well as one additional point for the fact that Mr. Cox committed the instant offense
       less than two years after release from prison, which would place—which would equal
       twelve criminal history points. That would normally place him in a criminal history
       category of V; however, under the status as a career offender, Mr. Cox’s criminal
       history category would be VI. Under the advisory range, that would meet a range of
       188 to 235 months.

       The court is, again, also directed to consider the factors under 18 U.S.C. §
       3553(a),which direct the court to impose, again, a sentence sufficient but not greater
       than necessary to accomplish the purposes set forth in paragraph 2.

The district court then reviewed the 18 U.S.C. § 3553(a) factors, noting several times that it has

discretion in so doing and describing in some detail how it viewed each factor.

       The district court acknowledged that Cox had requested a variance, but it denied his request

for a variance or a departure, stating:

       The court certainly is aware that Congress has been – it’s been a number of years,
       certainly as long as I’ve been on the bench, has been debating and considering and
       reconsidering what a lot of people argue, a lot of attorneys and other, I guess, persons
       who follow the development of the guidelines and of the sentencing in federal court
       have argued against what appeared or apparently was the disparity between crack
       cocaine and cocaine. Recently, Congress has attempted to at least reduce that
       distinction or that difference.

       And certainly, as Mr. Kitchen indicates, I suppose that Congress could have, at the
       same time, made some adjustments or changes in the career offender situation or
       status that would have reflected maybe that reduction or that difference or distinction
       but apparently did not choose to do so, or at least what we have here now is what we
       have. Although I recognize that it does impact a defendant in placing him or her in
       a higher category, Congress has seen fit to do that, and the court doesn’t at this point
       believe that it should—or is in a position to[—]say that Congress has acted
       inappropriately or unconstitutionally or illegally.

       I respectfully understand and determine—or understand what Ms. Smothers has
       argued, but I respectfully am denying the request to depart based upon what the court
       considers is Congress’s right to impose these types of conditions and status as it
       seems appropriate.
No. 07-6420
United States v. Cox
Page 4

       With that said, under the circumstances with the advisory range and considering the
       arguments of counsel as well as the record before it, the court believes an appropriate
       sentence in this matter, again considering all the factors that I’ve gone through under
       3553(a), would be at the low end of the guideline range, and the court is going to
       impose a period of incarceration of 188 months.

The district court sentenced Cox to 188 months of incarceration followed by four years of supervised

release. Cox timely appealed.

                                                  II.

       The standard of review for sentencing determinations is abuse of discretion. Gall v. United

States, 552 U.S. 38, 46 (2007). We review sentencing determinations for both procedural and

substantive reasonableness. A sentence is procedurally unreasonable if it is marked by “significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Id. at 51. “[A] sentence may be

substantively unreasonable when 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.” United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007)

(citation and quotation marks omitted).

       Section 3553(a) provides that, when imposing sentences, courts:

       shall consider . . . the nature and circumstances of the offense and the history and
       characteristics of the defendant [along with] the need for the sentence imposed . . .
       to reflect the seriousness of the offense, to promote respect for the law, and to
       provide just punishment for the offense . . . to afford adequate deterrence to criminal
       conduct [and] to protect the public from further crimes of the defendant.
No. 07-6420
United States v. Cox
Page 5

18 U.S.C. § 3553(a)(1-2). Sentences that fall within the advisory Guidelines range are afforded the

“rebuttable presumption of substantive reasonableness.” United States v. Erpenbeck, 532 F.3d 423,

430 (6th Cir. 2008) (citing Rita v. United States, 551 U.S. 338, 345 (2007)).

                                                  III.

       Cox argues that, in saying that “I respectfully am denying the request to depart based upon

what the court considers is Congress’s right to impose these types of conditions and status as it

seems appropriate,” the district court did not understand its discretion to impose a below-Guidelines

sentence regardless of Congress’ decision not to amend the career offender Guideline to reduce the

crack/cocaine disparity in sentencing. Cox suggests that this language demonstrates that the district

court was treating the career offender Guideline as effectively mandatory and as “per se reasonable,”

as we have previously found to violate United States v. Booker, 543 U.S. 220 (2005). United States

v. Kozinski, 480 F.3d 769, 777 (6th Cir. 2007).

       However, the circumstances here are not so stark as in Kozinski, where the district court

stated definitively that a within-Guidelines sentence is “per se reasonable.”1 Id. Here, the district

court repeatedly noted its ability to vary from the advisory Guideline range and specifically and

clearly stated its reasons for imposing the sentence having considered the Guidelines and the other




       1
           Moreover, while we recently held that a sentencing court may impose a sentence below the
career offender guideline incorporating the statutory crack/powder cocaine ratio based on a policy
disagreement with that guideline, see United States v. Michael, 576 F.3d 323, 327 (6th Cir. 2009),
it is certainly not required to do so. United States v. Smith, No. 08-1494, 2009 WL 3486631, at *3
(6th Cir. Oct. 29, 2009).
No. 07-6420
United States v. Cox
Page 6

section 3553(a) factors.2 It in no way stated that the Guidelines sentence was per se reasonable;

instead, the court merely explained that it understood that Congress could set the initial point from

which it was permitted to vary as necessary to address the problems associated with career offenders.

Thus, in context, the district court’s statements regarding Congress’ failure to amend the career

offender Guideline to address the crack/powder cocaine sentencing disparity did not show that the

court believed the career offender Guideline to be mandatory. Returned to its context, we understand

the district court to be saying that Congress has a right to set the advisory Guideline range at

whatever level it wants. The court followed this explanation with the statement that “[w]ith that

said, under the circumstances with the advisory range and considering the arguments of counsel as

well as the record before it, the court believes an appropriate sentence in this matter, again

considering all the factors that I’ve gone through under 3553(a), would be at the low end of the

guideline range.” This demonstrates the district court’s clear understanding that the career offender

Guidelines were advisory and the court’s discretion in setting an appropriate sentence.


       2
           Cox also argues in his pro se supplemental brief that the district court erred because:

       All of the 3553 factors were not reviewed . . . . The small amount of priors were
       never included in the PSR investigation or barely mentioned if at all at sentencing.
       These are pertinent 3553(a) factors that were not mentioned at the United States
       Court - but the only mentioning made was that Mr. Cox had 3 prior felonies.

However, while the record must reflect that the district court considered the section 3553 factors, the
district court need not give a detailed explanation of the factors so long as the court “satisf[ies] the
appellate court that [the judge] has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decision-making authority.” Rita, 551 U.S. at 356; see also United States
v. Madden, 515 F.3d 601, 610 (6th Cir. 2008) (applying Rita and noting that a lengthy explanation
is not required when a judge decides simply to apply the Guidelines to a particular case). Here, the
district court’s detailed and specific recitation of the section 3553(a) factors demonstrates that the
court considered the arguments and had a reasonable basis for exercising its discretion.
No. 07-6420
United States v. Cox
Page 7

                                             IV.

       For the foregoing reasons, we AFFIRM the judgment of the district court.
