                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0550n.06

                                           No. 11-1800
                                                                                           FILED
                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                               May 30, 2012
                                                                                LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
v.                                                   )       THE WESTERN DISTRICT OF
                                                     )       MICHIGAN
MARK DOUGLAS THOMAS, JR.,                            )
                                                     )
       Defendant-Appellant.                          )



       Before: MARTIN, GILMAN, and WHITE, Circuit Judges.


       PER CURIAM. Mark Douglas Thomas, Jr., who is represented by counsel, appeals his

sentence following his guilty plea to charges of conspiracy to possess and distribute pseudoephedrine

and to possession of pseudoephedrine.

       Thomas entered his guilty plea in 2011. Five co-defendants had also entered guilty pleas and

were sentenced in 2010. Thomas, however, was not arrested until after his co-defendants were

convicted. Each co-defendant reported that Thomas recruited them at a homeless shelter to purchase

pseudoephedrine from various stores, provided them the money for the purchases, and gave them

small amounts of cash for each purchase. Thomas would then take the pseudoephedrine to third

parties, who used the drug to manufacture methamphetamine. Thomas agreed with these statements

and added that he was similarly recruited to purchase pseudoephedrine by methamphetamine

manufacturers. Thomas eventually became the middleman between the manufacturers and his co-

defendants. Thomas identified the methamphetamine manufacturers only by their first names and

gave a general description of where they lived. Thomas stated that he received methamphetamine

and small amounts of money for his services.
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       A presentence report calculated Thomas’s advisory sentencing guidelines range as 210 to 262

months of imprisonment. Thomas filed objections to the report, taking issue with a four-level

enhancement to the offense level for being an organizer or leader of his co-defendants. He also

moved for a downward variance, arguing that: 1) the scoring of pseudoephedrine is too harsh under

the guidelines; 2) he should not receive the enhancement for being an organizer or leader; 3) his

criminal history was overstated; and 4) his cooperation with the government should be considered.

       At his sentencing hearing, Thomas again argued that he should not receive the enhancement

for being an organizer or leader. He also sought a downward variance because of his cooperation

with the government. The district court rejected the enhancement argument, finding that Thomas

was an organizer or leader of the conspiracy to possess pseudoephedrine. The court noted that the

individuals to whom he gave the pseudoephedrine in exchange for methamphetamine may be

organizers or leaders of a different conspiracy to manufacture methamphetamine. The district court

also rejected the cooperation argument, noting that the other co-defendants had already provided the

government with the facts regarding the drug operation prior to Thomas’s arrest. The court noted

that Thomas’s vague descriptions of the methamphetamine manufacturers had not led to any arrests.

The government requested that the court address the argument raised in the motion for a variance

concerning the alleged overstatement of Thomas’s criminal history. The court did so, noting that

it found Thomas’s criminal history score to be appropriate. Stating that the co-defendants received

sentences in the range of four to six years each, the district court varied downward from the
guidelines range and imposed a sentence of 180 months of imprisonment.

       On appeal, Thomas argues that his sentence is unreasonable because 1) he was not an

organizer or leader, 2) pseudoephedrine is scored too harshly under the guidelines, 3) his criminal

history was overstated, and 4) he cooperated with the government.

       We review sentences for procedural and substantive reasonableness. Gall v. United States,

552 U.S. 38, 51 (2007). First, we “ensure that the district court committed no significant procedural

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

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence
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based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If no

procedural error occurred, we “then consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard.” Id. A sentence may be substantively unreasonable “if the

district court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or

unreasonably weighs a pertinent factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir.), cert.

denied, 131 S. Ct. 3077 (2011). We review a sentencing determination for reasonableness under a

deferential abuse-of-discretion standard. United States v. Studabaker, 578 F.3d 423, 430 (6th Cir.

2009).

         Thomas argues that the district court failed to consider and explain its rejection of his non-

frivolous arguments, citing United States v. Garcia-Robles, 562 F.3d 763, 767 (6th Cir. 2009).

However, the sentencing transcript shows that the district court did consider and explain its reasons

for rejecting the two arguments that Thomas raised at the hearing. The district court also explained

its rejection of the argument that the criminal history was overrepresented, as requested by the

government. Thomas did not raise at the hearing his argument that pseudoephedrine is too harshly

punished. The district court did not have the opportunity to address the issue, and we are not

presented with any finding to review. Thus, our review of this issue is for plain error. See United

States v. Simmons, 587 F.3d 348, 357-58 (6th Cir. 2009). We have previously rejected similar

challenges to the guidelines regarding pseudoephedrine. United States v. Martin, 438 F.3d 621, 636-

37 (6th Cir. 2006). Therefore, no plain error is apparent in this case.
         The fact that Thomas desired a more lenient sentence than the downward variance he

received in this case is insufficient for us to disturb the district court’s judgment. See United States

v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007). Therefore, we affirm the district court’s

judgment.
