               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0059n.06
                          Filed: January 24, 2007

                                         No. 05-6753

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )   ON APPEAL FROM THE
                                                     )   UNITED STATES DISTRICT
CHRISTOPHER JORDAN WILSON,                           )   COURT FOR THE EASTERN
                                                     )   DISTRICT OF KENTUCKY
       Defendant-Appellant.                          )


BEFORE:       KEITH, and CLAY, Circuit Judges; MAYS, District Judge.*

       KEITH, Circuit Judge. Defendant, Christopher Jordan Wilson, appeals his sentence of 212

months following his guilty plea to possessing with intent to distribute fifty grams or more of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Because we find Wilson’s sentence to be

reasonable, we AFFIRM his sentence of 212 months.

                                               I.

       Wilson pled guilty to possessing with intent to distribute fifty grams or more of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1). On November 7, 2005, the district court

found, without objection, Wilson responsible for 1370.1 grams of pure methamphetamine. The

United States Sentencing Guidelines recommended a sentence between 262 to 327 months. The

Government requested “at least 25 percent” downward departure pursuant to 5K1.1 of the Guidelines


       *
        The Honorable Samuel H. Mays, Jr., United States District Court for the Western District
of Tennessee, sitting by designation.
No. 05-6753
United States v. Wilson
Page 2

due to Wilson’s substantial assistance to the Government. (J.A. at 154-55).            In light of his

substantial assistance, the district court reduced Wilson’s Guideline range to 125-235 months and

eventually sentenced him to 212 months, which accounted for 18 months of time served. Wilson

filed a timely notice of appeal.

       On appeal, Wilson assigns two errors to his sentence. His first objection, insofar as it can

be discerned from his briefs, is that “the sentencing court treated the Sentencing Guidelines as

mandatory instead of advisory when the court did not reduce [his] sentence by 50 percent.”

(Appellant’s Br. at 8). Second, Wilson submits that the district court “did not clearly communicate

its rationale when sentencing [him] at the higher end of the guideline range.” (Appellant’s Br. at 10).

Wilson’s objections are discussed in turn.

                                                 II.

       “When reviewing sentencing decisions, [the Court] review[s] the district court’s factual

findings for clear error, while reviewing the district court’s conclusion of law de novo.” United

States v. Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005). “Where the district court applied advisory

Guidelines, this Court reviews the selection of the sentence for reasonableness.” United States v.

Anderson, 187 F. App’x 517, 521 (6th Cir. 2006). A sentence that falls within the Guidelines’

advisory range is afforded a “rebuttable presumption of reasonableness.”1 United States v. Cage,

458 F.3d 537, 541-44 (6th Cir. 2006).          However, “[e]ven when selecting a presumptively



       1
          It should be noted that, on October 13, 2006, this Court granted en banc review in United
States v. Vonner, 452 F.3d 560 (6th Cir. 2006), and the Supreme Court will hear United States v.
Rita, 177 F. App’x 357 (4th Cir. 2006), cert. granted, 75 U.S.L.W. 3246 (U.S. Nov. 3, 2006) (No.
06-5754), to decide whether a sentence within the Guidelines may be presumed reasonable.
No. 05-6753
United States v. Wilson
Page 3

reasonable sentence within the Guidelines range, a district court must ‘articulate[] its reasoning

[under § 3553(a)] sufficiently to permit reasonable appellate review, specifying its reasons for

selecting’ the specific sentence within that range.” United States v. Richardson, 437 F.3d 550, 554

(6th Cir. 2006) (quoting United States v. Williams, 436 F.3d 706, 709 (6th Cir. 2006)) (second

alteration in original).

                                                   III.

        Wilson’s first objection — namely, that “the sentencing court treated the Guidelines as

mandatory instead of advisory when the court did not reduce [his] sentence by 50 percent”

(Appellant’s Br. at 8) — is baseless. Foremost, neither Wilson nor the Government requested a 50

percent departure under § 5K1.1. The Government merely requested “at least a 25 percent”

departure. It is true, as Wilson points out, that the Government did comment that it would have

requested a 50 percent departure, but stated that “at this time, that’s not available to us, but will be.”

(J.A. at 154-55). The record is not clear as to what the Government exactly intended by this

language. In any case, contrary to Wilson’s proposition, there is not a scintilla of evidence to

indicate that the district court was inclined to grant a 50 percent departure but felt constrained from

doing so. In fact, the district court explicitly noted that “it’s the [c]ourt’s discretion as to the level

of departure[.]” (J.A. at 156). Moreover, even assuming the court felt constrained in granting

Wilson’s reduction under § 5K1.1, which is not supported by the record, Wilson neglects to explain

how it analytically follows that the district court thereby treated the entire Guidelines as

“mandatory.”
No. 05-6753
United States v. Wilson
Page 4

       Insofar as Wilson is merely objecting to the extent of his § 5K1.1 departure—as opposed to

whether the district court felt constrained in granting this departure—it is black letter law that “the

decision[] whether to depart and how much to depart are entirely committed to the district judge’s

discretion.” See United States v. Jones, 417 F.3d 547, 550 (6th Cir. 2005). “[U]pon a § 5K1.1

motion by the government, the most the defendant and the government itself can do is recommend

a particular sentence to the district court.” Id. Therefore, this Court is without jurisdiction to hear

such an objection. See id. at 551.

                                                  IV.

       Wilson’s second error of assignment — namely, that the district court did not clearly

communicate its rationale for selecting its sentence — is also without merit. Under post-Booker1

Guidelines, this Court has repeatedly “emphasize[d] the obligation of the district court in each case

to communicate clearly its rationale [under § 3553(a)] for imposing the specific sentence.”

Richardson, 437 F.3d at 554. “This assures not only that the defendant can understand the basis for

the particular sentence but also that the reviewing court can intelligently determine whether the

specific sentence is indeed reasonable.” Id. However, “[t]here is no requirement that the district

court . . . engage in a ritualistic incantation of the § 3553(a) factors it considers,” United States v.

Chandler, 419 F.3d 484, 488 (6th Cir. 2005) (alterations in original) (internal quotation marks

omitted), or that it formally “mention[] the magic words ‘§ 3553(a) factors,’” United States v. Till,

434 F.3d 880, 887 (6th Cir. 2006).




        1
            See United States v. Booker, 543 U.S. 220 (2005).
No. 05-6753
United States v. Wilson
Page 5

       Here, the district court was especially troubled by “the volume of drugs” attributed to Wilson,

which amounted to 1370.1 grams of pure methamphetamine. But, the court also took note that

“[Wilson] was one person that did come forward and acknowledge his responsibility in this case .

. . nearly from the very beginning.” (J.A. at 185). Wilson’s history and characteristics were also

accounted for, as well as his 18 months of time served. The court was also evidently concerned

about Wilson’s history of abusing drugs since it recommended that “he participate in the intensive

drug education treatment program,” as well as in a GED program, while incarcerated. (J.A. at 186).

Therefore, we find that the record does not support Wilson’s argument that “[t]he sentencing court

did not clearly communicate its rationale when sentencing Wilson[,]” (Appellant’s Br. at 10), but

instead demonstrates that the district court sufficiently communicated its rationale pursuant to §

3553(a).

                                                 V.

       Accordingly, because the district court proffered sufficient reasons for sentencing Wilson

near the higher end of the Guideline range and because his sentence falls within the Guideline range,

we must afford, under this Circuit’s law, Wilson’s sentence a presumption of reasonableness, which

he has not rebutted. We, therefore, AFFIRM Wilson’s sentence of 212 months.
