                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0910n.06

                                            No. 12-5560

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                    FILED
UNITED STATES OF AMERICA,                        )                             Oct 23, 2013
                                                 )                        DEBORAH S. HUNT, Clerk
                      Plaintiff-Appellee,        )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
RODREGUS RAMSEY,                                 )   MIDDLE DISTRICT OF TENNESSEE
                                                 )
                      Defendant-Appellant.       )
                                                 )

Before: MOORE and GRIFFIN, Circuit Judges; and SARGUS, District Judge.*

       SARGUS, District Judge. Rodregus Ramsey (“Appellant”) appeals his sentence for

conspiracy to posses with intent to distribute methylenedioxymethamphetamine (“MDMA”) and

marijuana, in violation of 21 U.S.C. § 846. Ramsey pleaded guilty to the superseding indictment

and was sentenced to a term of 110 months of imprisonment. Ramsey contends that the sentence

imposed was substantively unreasonable. For the reasons that follow, we affirm the sentence.

                                                I.

       Ramsey was intercepted via a court ordered wiretap on a number of phone calls made by the

targets of a large scale drug investigation. Ramsey’s involvement included the distribution of 100

MDMA pills and a small amount of marijuana.




       *
        The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District
of Ohio, sitting by designation.
12-5560
United States of America v. Rodregus Ramsey


       Without objection, the presentence report included a determination of an offense level 16,

based upon the quantity of MDMA pills. Ramsey also was eligible for a three-level reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1, which would otherwise yield a total offense

level of 13. Unfortunately for Ramsey, two prior convictions rendered him a Career Offender under

U.S.S.G. § 4B1.1.1 In 1995, appellant was convicted of aggravated assault. Two years later, he

again was convicted of a similar crime of violence.

       U.S.S.G. § 4B1.1 provides that, if the offense of conviction carries a possible sentence of

twenty years or more, the new offense level is 32. Consequently, Ramsey’s base offense rose from

13 to 32. The Career Offender guideline also imposes the highest criminal history category of VI.

In Ramsey’s case, given his extensive criminal history, the points assessed for his earlier convictions

resulted in the same criminal history category. Based on a total offense level of 29 and a criminal

history category of VI,2 without objection, the sentencing guideline range was 151 to 188 months.

       Prior to sentencing, the government filed a motion under U.S.S.G. § 5K1.1 requesting a

downward departure of three levels based upon Ramsey’s substantial assistance. Although

Ramsey’s counsel asked for a greater degree of departure, the district court granted the motion and

reduced the offense level to 26, a three-level departure.




       1
         This guideline provides for a significant increase in both the offense level and criminal
history, if the offender has two prior convictions for crimes of violence.
       2
         Ramsey still received a three-level reduction for acceptance of responsibility under § 3E1.1,
for a total offense level of 29.

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United States of America v. Rodregus Ramsey


        Ramsey’s counsel did not dispute the mechanical application of the Career Offender

guideline. He did contend, however, that the two offenses triggering the guideline occurred many

years ago, in 1995 and 1997. The earlier conviction involved conduct that occurred while Ramsey

was only seventeen. While Ramsey’s criminal history category would have otherwise been a VI

without the Career Offender guideline, six of his fifteen criminal history points were assessed for

three convictions of driving with a suspended license. Ramsey contended that a criminal history

category of VI overstated his criminal past. The district court agreed in part and reduced the

criminal history category to V, resulting in a final guideline range of 110 to 137 months.

        Ramsey maintained that the sentencing guideline range was unreasonable.                Without

application of the Career Offender guideline, the range, based upon a total offense level of 13 and

a criminal history category of VI, would have been 33 to 41 months. Instead, two convictions for

crimes of violence both occurring more than fifteen years ago elevated the guideline range to 151

to 188 months, without consideration of the motion under U.S.S.C. § 5K1.1. Ramsey sought a

variance from the sentencing guideline range and requested a sentence of 41 months.

        The district court considered each argument presented.           While recognizing that the

convictions triggering the Career Offender guidelines were old, the judge also noted that Ramsey’s

criminal conduct had not ended after his youth. In 2008, he was convicted of selling cocaine within

a thousand feet of a school. As to the points assessed for driving without a license, the district court

agreed that these two convictions, taken in isolation, caused Ramsey’s actual criminal past to be




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United States of America v. Rodregus Ramsey


somewhat overstated. The district judge also noted, however, that Ramsey had on numerous

occasions violated the terms of supervision imposed on both of these convictions.

       The district court imposed a sentence of 110 months of imprisonment, which was the lowest

number of months within the sentencing guideline range.

                                                II.

       Ramsey raises a single assignment of error, albeit in two disparate parts. He contends that

the sentence of 110 months was substantively unreasonable. Relatedly, he also asserts that, given

his substantial assistance to the government, the sentence imposed was unreasonable.

       We review the sentence imposed for both procedural and substantive reasonableness.3 A

sentence within the sentencing guidelines range is presumptively reasonable. Gall v. United States,

552 U.S. 38, 51 (2007). “‘A sentence is substantively unreasonable if the sentencing court

arbitrarily selected the sentence, based the sentence upon impermissible factors, failed to consider

§ 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.’” United States

v. Mitchell, 681 F.3d 867, 880 (6th Cir. 2012) (quoting United States v. Cunningham, 669 F.3d 723,

733 (6th Cir. 2012)).

       To the extent Ramsey challenges the degree of departure selected under U.S.S.G. § 5K1.1,

we lack jurisdiction to review a contention that, after granting the government’s motion for a

downward departure based upon a defendant’s substantial assistance, the sentencing court should




       3
        Ramsey does not challenge the procedural reasonableness of the sentence imposed.

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12-5560
United States of America v. Rodregus Ramsey


have selected a more significant reduction. United States v. Curry, 536 F.3d 571, 573 (6th Cir.

2008); United States v. Jones, 417 F.3d 547, 551 (6th Cir. 2005).

                                                III.

       Ramsey contends that the sentence imposed was substantively unreasonable and far greater

than necessary to comply with the § 3553(a) factors. Ramsey’s argument focuses upon (1) the

operation of the Career Offender guideline and (2) the degree of his cooperation with the

government.

       Ramsey first notes the relatively small amount of drugs which constitute his relevant

conduct. The presentence report, without objection, computed his conduct to involve 100 pills of

MDMA, yielding an offense level 16, reduced by three levels for acceptance of responsibility, to an

adjusted offense level of 13.

       Before consideration of the Career Offender guidelines, the presentence report determined

that Ramsey had fifteen criminal history points, which on this basis alone placed him in the highest

criminal history category of VI. His prior convictions included two aggravated assaults (during one

of which he shot at police officers), three occasions of driving without a license, and one sale of

cocaine within 1,000 feet of a school. The aggravated assaults occurred in 1993 and 1996. The

driving without a license offenses occurred between 2005 and 2007. With regard to these offenses,

Ramsey had his probation revoked several times for failing to appear for drug testing, testing

positive for marijuana, and failure to pay fines and costs. The last offense, sale of cocaine near a

school, occurred in 2008.



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United States of America v. Rodregus Ramsey


       The two relatively old offenses of aggravated assault triggered the application of the Career

Offender guidelines under U.S.S.G. § 4B1.1. Both offenses are classified as crimes of violence,

which the parties do not dispute. The guideline expressly provides that a qualified defendant (1) be

placed in a criminal history category of VI, where Ramsey had already been placed; and (2) have

an offense level of 32, where, as in this case, the instant offense carried a maximum sentence of at

least twenty years. See U.S. Sentencing Guidelines Manual § 4B1.1(b).

       There is no question that the application of the Career Offender guideline dramatically

increased the sentencing guideline range in this case. Without consideration of the Career Offender

guidelines, the range would have been 33 to 41 months, based upon an adjusted offense level of 13

and a criminal history category of VI. With application of the Career Offender guideline, the

adjusted offense level became 29, with the same criminal history category of VI, yielding a range

of 151-188 months, thereafter reduced via § 5K1.1 to 120-150 months.

       The district court addressed each of the issues raised in this appeal. The sentencing judge

considered the fact that two prior convictions which triggered the Career Offender guideline were

old. The judge also noted that a number of juvenile convictions scored no points. He observed that

the defendant had not turned a new leaf following the older convictions, but had been recently

convicted of selling cocaine near a school.

       The district court also concluded that the criminal history points scored for the three prior

convictions for driving without a license caused Ramsey’s overall criminal history to be overstated.

Consequently, the sentencing judge departed one level to a criminal history category of V. With



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12-5560
United States of America v. Rodregus Ramsey


the same departure of three levels under U.S.S.G. § 5K1.1, the final guideline range was 110 to 137

months.

        The sentencing judge discussed in detail the operation of the Career Offender guideline. The

district court reviewed with counsel prior to sentencing the precise increase in the ultimate

sentencing guideline range caused by the Career Offender guideline. Ultimately, the district court

determined that, while the triggering prior convictions were old, the appellant did not reform, the

earlier offenses were very serious, and Ramsey had been recently convicted of another drug

trafficking offense. We cannot say that the district court’s decision was unreasonable.

        Likewise, we find no merit in Ramsey’s argument that the sentencing court should have

granted a greater departure under § 5K1.1. The district judge considered the recommendation made

by the government and also addressed defense counsel’s request for a larger reduction in sentencing.

The three level reduction was substantial. The government represented to the court that Ramsey was

helpful, but had little information to offer.

        Case law from this Circuit is clear that we have no jurisdiction to review the degree of

departure selected by the district judge in response to a § 5K1.1 motion. See Curry, 536 F.3d at 573;

Jones, 417 F.3d at 551. Arguably, the level of a defendant’s assistance is a potential factor in the

analysis under § 3553(a), particularly, as in this case, where the government has already filed a

§ 5K1.1 motion. United States v. Gapinski, 561 F.3d 467, 475 n.3 (6th Cir. 2009).

        While appellant’s counsel argued for a greater departure, he conceded that the utility of the

information given by Ramsey was beyond his control and that the level of reduction selected was



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United States of America v. Rodregus Ramsey


a judgment call. We find no error in the decision of the sentencing judge to depart three levels under

§ 5K1.1.

                                                 IV.

       Based upon the foregoing, we AFFIRM the judgment and sentence of the district court.




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