                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0050n.06

                                           No. 12-5321                                  FILED
                                                                                     Jan 09, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )      ON APPEAL FROM THE
                                                     )      UNITED STATES DISTRICT
v.                                                   )      COURT FOR THE EASTERN
                                                     )      DISTRICT OF TENNESSEE
MICHAEL TODD SIMS,                                   )
                                                     )
       Defendant-Appellant.                          )




       BEFORE: BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circuit Judges.


       PER CURIAM. Michael Todd Sims, a veteran of the Iraq War, appeals the 120-month

sentence for his methamphetamine conspiracy offense, asserting that the mandatory minimum

sentence is unconstitutional as applied to combat veterans. We affirm Sims’s sentence.

       Pursuant to a written plea agreement, Sims pleaded guilty to conspiracy to manufacture and

distribute 50 grams or more of actual methamphetamine or 500 grams or more of a mixture or

substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and

846. Based on a total offense level of 29 and a criminal history category of III, Sims’s presentence

report calculated a guidelines range of 108 to 135 months of imprisonment. Sims, however, faced

a mandatory minimum sentence of ten years pursuant to 21 U.S.C. § 841(b)(1)(A), resulting in an

effective guidelines range of 120 to 135 months of imprisonment. Sims did not dispute the

guidelines calculation but moved for a variance, asserting that the Supreme Court in Porter v.
No. 12-5321
United States v. Sims

McCollum, 558 U.S. --, 130 S. Ct. 447 (2009), established a new rule of federal common law

requiring leniency for combat veterans and that application of the mandatory minimum sentence is

unconstitutional as applied to combat veterans like himself by depriving them of the required

leniency. The district court, while acknowledging that “we all owe you and everyone else who has

worn that uniform a great debt of gratitude that cannot be repaid,” concluded that it was bound by

the mandatory minimum and sentenced Sims to 120 months of imprisonment.

        On appeal, Sims contends that the mandatory minimum sentence is unconstitutional as

applied to combat veterans. Sims’s constitutional challenge to his sentence is a question of law that

we review de novo. See United States v. Kelsor, 665 F.3d 684, 701 (6th Cir. 2011).

        Contrary to Sims’s argument, the Supreme Court in Porter did not establish a new rule of

federal common law. In Porter, a death penalty case, the Supreme Court held that “it was

objectively unreasonable to conclude there was no reasonable probability the sentence would have

been different if the sentencing judge and jury had heard the significant mitigation evidence that

Porter’s counsel neither uncovered nor presented,” including “(1) Porter’s heroic military service in

two of the most critical—and horrific—battles of the Korean War, (2) his struggles to regain

normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain

abnormality, difficulty reading and writing, and limited schooling.” 558 U.S. at --, --,130 S. Ct. at

448, 454. In reaching this conclusion, the Supreme Court held that the Florida courts unreasonably

discounted Porter’s military service, stating: “Our Nation has a long tradition of according leniency

to veterans in recognition of their service, especially for those who fought on the front lines as Porter

did.” Id. at --, 130 S. Ct. at 455. This observation did not amount to one of the “few and restricted”

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No. 12-5321
United States v. Sims

instances where the Supreme Court has created federal common law, Wheeldin v. Wheeler, 373 U.S.

647, 651 (1963); rather, the Supreme Court merely acknowledged that a defendant’s military service

has historically been viewed as a mitigating factor at sentencing, see USSG App. C, Vol. III, at 350-

51 (Nov. 1, 2011) (reading Porter as recognizing that military service is “a traditional mitigating

factor at sentencing”). In recognizing that veterans have traditionally been afforded leniency, the

Supreme Court did not require leniency, much less as a matter of federal common law.

        Even if Porter could be read as announcing a new rule of federal common law regarding

leniency for combat veterans, the district court would still have been required to impose the

mandatory minimum sentence set by Congress in 21 U.S.C. § 841(b)(1)(A). “[C]ongressional

legislation excludes the declaration of federal common law” where “the statute speaks directly to the

question at issue.” Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2537 (2011) (internal

quotation marks and brackets omitted); see also Mertens v. Hewitt Assocs., 508 U.S. 248, 259 (1993)

(stating that the authority to develop federal common law does not include “the authority to revise

the text of the statute”). Here, Congress has spoken directly to the issue by acting within its authority

to establish mandatory minimum sentences for certain drug offenses. See United States v. Odeneal,

517 F.3d 406, 414 (6th Cir. 2008). The district court could not disregard the minimum sentence

statutorily mandated by Congress for Sims’s drug offense. See United States v. Cecil, 615 F.3d 678,

695-96 (6th Cir. 2010).

        Accordingly, we affirm Sims’s 120-month sentence.




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