                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0633n.06

                                     Nos. 08-3034 and 08-3238

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


                                                                                     FILED
                                                                                  Sep 08, 2009
UNITED STATES OF AMERICA,                                )                  LEONARD GREEN, Clerk
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )    ON APPEAL FROM THE UNITED
                                                         )    STATES DISTRICT COURT FOR
DeWAYNE L. WALKER and CORNELIUS                          )    THE SOUTHERN DISTRICT OF
EDRINGTON,                                               )    OHIO
                                                         )
       Defendants-Appellants.                            )
                                                         )



Before: SILER, COOK, and GRIFFIN, Circuit Judges.

       SILER, Circuit Judge. In 2007, the district court sentenced DeWayne Walker and Cornelius

Edrington, along with multiple co-defendants, after each pled guilty to conspiracy to possess with

the intent to distribute cocaine. Walker appeals his sentence based on the district court’s application

of a two-level firearms enhancement to his Guidelines sentence. He also appeals—as a violation of

his Sixth Amendment right to a jury trial—the use of his prior felony convictions to enhance his

Guidelines range. Edrington appeals his sentence as procedurally unreasonable because the district

court failed to explain its rejection of his sentence disparity argument. For the following reasons,

we AFFIRM.

                                         BACKGROUND
A. DeWayne Walker

       Walker pled guilty to conspiracy to possess with intent to distribute cocaine in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. In his plea agreement, Walker acknowledged a two-

level enhancement to his base offense level for firearm possession. With a criminal history of II and

an offense level of 33, he faced a recommended Guidelines range of 151 to 188 months of

imprisonment. Based on his cooperation, the government moved for a three-level reduction in

Walker’s offense level; this new offense level suggested a Guidelines sentence of 108 to 135 months.

The district court sentenced Walker to 108 months.

       On appeal, Walker argues that the district court erred in applying the two-level firearms

enhancement. He further argues that the convictions used to calculate his criminal history were not

proven beyond a reasonable doubt and therefore their use in computing his Guidelines range violated

his Sixth Amendment right to a jury trial.

B. Cornelius Edrington

       Edrington pled guilty to conspiracy to possess with the intent to distribute cocaine in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. With a criminal history category of III

and an offense level of 31, he faced a recommended Guidelines range of 135 to 168 months of

imprisonment. The district court did not grant Edrington any reductions in his offense level and

sentenced him to 140 months of imprisonment. On appeal, Edrington argues that his sentence was

unreasonable because the district court did not explain its reasoning in rejecting his sentence

disparity argument.

                                          DISCUSSION

I. Walker’s Firearm Enhancement
        Walker argues that the district court erred in applying the two-level firearm enhancement

under USSG § 2D1.1. He argues that the Supreme Court’s decision in Heller requires this court to

renounce the presumptive connection between an offense and a weapon when the defendant

possessed the weapon during the commission of the offense. See United States v. Hill, 79 F.3d

1477, 1485 (6th Cir. 1996) (“‘Once it is established that a defendant was in possession of a weapon

during the commission of an offense, a presumption arises that such possession was connected to

the offense.’” (quoting United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991) (abrogated on

other grounds))). See generally District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008)

(declaring the citizenry’s limited right to keep and bear arms).

        We do not consider the merits of Walker’s claim here. Walker accepted the two-level

enhancement by signing a plea agreement before sentencing, and in doing so waived any challenge

regarding the government’s burden of proof.

II. Walker’s Prior Convictions and Criminal History

        Walker argues that since a jury did not determine that his prior convictions qualified as

criminal history points, the use of those convictions to enhance his sentence violated his Sixth

Amendment right to a jury trial. In general, a fact that increases a criminal penalty beyond the

statutory maximum falls within the Sixth Amendment’s protections. Apprendi v. New Jersey, 530

U.S. 466, 490 (2000). However, the fact of a prior conviction remains an exception to the rule. Id.;

see also Almendarez-Torres v. United States, 523 U.S. 224, 239 (1998). Furthermore, Walker’s

sentence of 108 months does not exceed the statutory maximum. 21 U.S.C. § 843(d)(1) (2006) (each

of the three offenses to which Walker pled guilty carries a maximum of 48 months, a total maximum

of 144 months, compared to his 108-month sentence). For these two reasons, Apprendi allows the

district court’s actions.
       Walker argues that the precedent of Apprendi and Almendarez-Torres no longer constitutes

good law. See generally Shepard v. United States, 544 U.S. 13, 28 (2005) (Thomas, J., concurring)

(“The parties do not request it here, but in an appropriate case, this Court should consider

Almendarez-Torres’ continuing viability.”). However, this court has already refused Walker’s

argument; the Supreme Court maintains “‘the prerogative of overruling its own decisions.’” United

States v. Hill, 440 F.3d 292, 299 n.3 (6th Cir. 2006) (quoting Tenet v. Doe, 544 U.S. 1, 10-11

(2005)).

III. Reasonableness of Edrington’s Sentence

       Edrington argues that the district court imposed a procedurally unreasonable sentence

because it failed to explain why it rejected his argument about the disparity of his and his co-

defendants’ sentences.

       This court reviews the district court’s sentencing decision for reasonableness. United States

v. Webb, 403 F.3d 373, 383 (6th Cir. 2005). A sentence where the district court considered a

properly calculated Guidelines range is presumptively reasonable. United States v. Williams, 436

F.3d 706, 708 (6th Cir. 2006).

       To determine the procedural reasonableness of a sentence, we ensure that the district court

“‘adequately explain[ed] the chosen sentence to allow for meaningful appellate review and to

promote the perception of fair sentencing.’” United States v. Bolds, 511 F.3d 568, 580 (quoting

United States v. Gall, 128 S. Ct. 586, 597 (2007)) (alteration in original). “The sentencing judge

should 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.” Rita v. United

States, 551 U.S. 338, 356 (2007).
       In the instant case, the district court heard Edrington’s argument, asked for a response from

the government, and notified Edrington that it would take his argument into account. The district

court met its burden under Rita by following the correct sentencing procedures and adequately

explaining its basis for the sentence. Thus, the district court sentenced Edrington reasonably.

       AFFIRMED.
