               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0043n.06

                                       Case No. 15-6328
                                                                                    FILED
                         UNITED STATES COURT OF APPEALS                        Jan 19, 2017
                              FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE EASTERN DISTRICT OF
JAMES HELTON, JR.,                                 )      KENTUCKY
                                                   )
       Defendant-Appellant.                        )
                                                   )


BEFORE: COLE, Chief Judge; BOGGS and SILER, Circuit Judges.

       SILER, Circuit Judge. Defendant James Helton, Jr. appeals his sentence, arguing that

the sentence is both procedurally and substantively unreasonable. Because the district court did

not commit plain error and issued a substantively reasonable sentence, we affirm.

              FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       In 2015, Helton pleaded guilty to conspiring to distribute five or more grams of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. At sentencing,

Helton requested a downward departure under USSG § 5H1.4 because of his failing health. The

district court denied this motion. Finding Helton to be a career offender under USSG § 4B1.1,

the district court sentenced Helton to 180 months’ incarceration—eight months below the

minimum guideline range.
Case No. 15-6328
United States v. James Helton, Jr.

                                         DISCUSSION

   I.       Procedurally Unreasonable Sentence

           a. Standard of Review

        When reviewing for procedural reasonableness, we ensure that the district court

committed no “significant procedural error[s].” United States v. Johnson, 640 F.3d 195, 201 (6th

Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). “To meet the requirement of

procedural reasonableness, the sentencing judge must ‘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.’” United States v. Klups, 514 F.3d 532, 537 (6th Cir. 2008)

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).


        While usually the “question of whether a sentence is reasonable is determined using the

abuse-of-discretion standard of review,” United States v. Carter, 510 F.3d 593, 600 (6th Cir.

2007), the procedural claims in this case are reviewed for plain error only. After sentencing

Helton, the district court asked the parties if they had any legal objections. At this invitation,

Helton raised none. Due to this failure, plain-error review controls. See United States v. Vonner,

516 F.3d 382, 385–86 (6th Cir. 2008) (en banc) (holding that defendant’s failure to raise

objection after invitation mandates plain-error review of procedural arguments).


        In an inadequacy-of-explanation challenge, the defendant must prove that “the district

court would have reached a different sentence if it had reasoned properly.” United States v.

Gabbard, 586 F.3d 1046, 1051 (6th Cir. 2009) (per curiam). A district court’s “mere failure to

fully explain the extent of its consideration of sentencing factors” is not plain error. United

States v. Houston, 529 F.3d 743, 751 (6th Cir. 2008).



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United States v. James Helton, Jr.

             b. Policy Statement for Criminal History (USSG § 4A1.3)

       Helton argues that the district court erred in not considering the policy statement that

allows for a downward departure found in USSG § 4A1.3. USSG § 4A1.3(b)(1) states “[i]f

reliable information indicates that the defendant’s criminal history category substantially over-

represents the seriousness of the defendant’s criminal history or the likelihood that the defendant

will commit other crimes, a downward departure may be warranted.” See also United States v.

Smith, 278 F.3d 605, 611 (6th Cir. 2002) (holding “sentencing judges have the discretion to

determine that a defendant’s criminal history category may overstate his actual criminal

history”).


       To support a downward departure under USSG § 4A1.3(b)(1), Helton points to the

remoteness of his predicate offenses which occurred over fourteen years ago, the proximity in

time of the predicate offenses to one another as they occurred within a two-year span, the

influence of addiction on his recidivism, and his low-level trafficking of drugs. However, Helton

never raised this policy statement during sentencing and thus the district court did not abuse its

discretion by failing to consider the policy. United States v. Walls, 546 F.3d 728, 737 (6th Cir.

2008) (finding that a district court does not abuse its discretion when it does not consider

mitigating factors not raised during sentencing).


       To try to save this argument, Helton cites Molina-Martinez v. United States, 136 S. Ct.

1338 (2016).      In Molina-Martinez, the Supreme Court allowed the defendant to raise a

sentencing guideline error that was not raised in the district court. Id. at 1341 (“The error went

unnoticed by the court and the parties, so no timely objection was entered.”). This error resulted

in an incorrect guideline range, which resulted in a remand for resentencing. Id. at 1349.


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United States v. James Helton, Jr.

       Although Molina-Martinez may mitigate the rigid application of Walls, Molina-Martinez

is distinguishable from this case.    First, the sentencing guidelines provisions at issue are

distinguishable. In Molina-Martinez, USSG § 4A1.2(a)(2) (Nov. 2012) stated:


       If the defendant has multiple prior sentences, determine whether those sentences
       are counted separately or as a single sentence. Prior sentences always are counted
       separately if the sentence were imposed for offenses that were separated by an
       intervening arrest. . . . If there is no intervening arrest, prior sentences are
       counted separately unless [other sections not relevant apply].

In this case, as described above, the guideline provision gives the district court discretion to

determine whether a downward departure is warranted. Therefore, the guideline policy in this

case is not an affirmative instruction, as in Molina-Martinez, but a discretionary decision. See

also Smith, 278 F.3d at 611 (holding “sentencing judges have the discretion to determine that a

defendant’s criminal history category may overstate his actual criminal history”).       Second,

“[j]udges may find that some cases merit a detailed explanation of the reasons the selected

sentence is appropriate. And that explanation could make it clear that the judge based the

sentence he or she selected on factors independent of the Guidelines.” Molina-Martinez, 136 S.

Ct. at 1346–47. At sentencing, the district court articulated why it was imposing the 180-month

sentence. It stated that “this isn’t a five-year case” and went into detail that the sentence it

imposed was necessary to deter criminal conduct, promote respect for the law, protect the public,

and provide adequate punishment. Therefore, the district court made “it clear that [it] based the

[180-month] sentence. . . on factors independent of the Guidelines” even going below the

guideline range after denying a downward departure. Molina-Martinez, 136 S. Ct. at 1347.


       In addition to these distinctions, the district court also did not commit a plain error

because Helton cannot prove “the district court would have reached a different sentence” if it had



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United States v. James Helton, Jr.

considered the policy. Gabbard, 586 F.3d at 1051. While Helton did not have any convictions

between 2001 and the instant offense, he was either incarcerated or on parole for almost that

entire period. Within a year after being discharged from parole, Helton began distributing

methamphetamine again.        In addition, his criminal history, without the career-offender

enhancement, is prolific, including receiving stolen property and escaping from a state prison

camp.


           c. Downward Departure for Poor Health (USSG § 5H1.4)

        Helton argues that the district court erred in not granting his motion for downward

departure because of poor health. We do not “review a district court’s decision not to depart

downward unless the record shows that the district court was unaware of, or did not understand,

its discretion to make such a departure.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir.

2008). In this case, the district court was aware of its discretion. Helton’s medical conditions

were undisputed. The district court also articulated that it had considered the motion, stating:


        The second one are these policy statements, and health is -- is a policy statement.
        I’m going to deny your attorney’s motion as it relates to a departure, meaning that
        that recommended sentence ought to be less. I thought the government articulated
        -- Mr. Parman articulated very well. That’s a rare circumstance that we think that
        the recommended sentence ought to be changed only in the most exceptional
        circumstances, and I don’t think the record supports that in this particular case.
        But as it relates to a variance, I’m going to address that in a few minutes.

Furthermore, the district court continued, throughout the sentencing proceeding, to acknowledge

Helton’s exceptionally poor health—facts that were undisputed and remain undisputed—and

granted Helton a variance due to his health.


        In addition, Helton argues that the district court erred by not making factual findings as to

the relative costs and efficiency of home confinement and imprisonment. See United States v.


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United States v. James Helton, Jr.

Bostic, 371 F.3d 865, 875 (6th Cir. 2004) (stating that USSG §§ 5H1.1 and 5H1.4 “require the

district court to consider the relative costs and efficiency of home confinement and

imprisonment”); see also USSG § 5H1.4 (2015) (“An extraordinary physical impairment may be

a reason to depart downward; e.g., in the case of a seriously infirm defendant, home detention

may be as efficient as, and less costly than, imprisonment.”). This argument also fails. While

the district court did not explicitly make findings about the relative costs of home confinement, it

did find that imprisonment greatly outweighed other alternatives when considering the

efficiency. For example, the district court stated that Helton could not continue his drug activity

while he is incarcerated. Furthermore, it observed that incarceration would allow Helton to

receive proper treatment for his drug addiction and protect the community from his drug activity.

Additionally, it stated that incarceration would allow Helton to receive adequate health care and

change his lifestyle to have a great impact on his health. Therefore, the district court considered

the efficiency of each alternative and found that the efficiency of imprisonment far outweighed

other alternatives without any consideration of cost.


           d. Mitigation Due to Criminal History and Poor Health (18 U.S.C. § 3553(a)(1))

       Helton argues that, in the alternative, the district court erred in not considering his

criminal history and poor health as relevant considerations under 18 U.S.C. § 3553(a)(1).


       However, the district court clearly applied in detail the statutory factors. Specifically, it

considered Helton’s prior criminal history stating that “given your prior criminal record and the

seriousness of this offense” Helton was likely going to receive a serious sentence. The district

court also considered Helton’s health in denying a downward departure, but granted a variance

below the minimum of the guideline range. While the explanations given for each consideration


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United States v. James Helton, Jr.

may not be as detailed as Helton would have hoped, a district court’s “mere failure to fully

explain the extent of its consideration of sentencing factors” is not plain error.         Houston,

529 F.3d at 751. Furthermore, “a district court need not provide an explanation for rejecting a

mitigating argument if ‘the matter is conceptually simple’ and ‘the record makes clear that the

sentencing judge considered the evidence and arguments.’” United States v. Sexton, 512 F.3d

326, 332 (6th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 359 (2007)).


           e. Erroneous Facts

       The last procedural challenge Helton brings concerning his sentence is that the district

court improperly based its sentence on erroneous facts. Specifically, Helton points to three

allegedly erroneous statements: (1) stating that Helton was a producer of methamphetamines;

(2) conflating Helton’s offense with our nation’s epidemic of opioid overdose; and

(3) mischaracterizing his individual history and characteristics.


       In reviewing each of these statements, Helton takes each statement out of context to

provide an argument that his sentence was based on erroneous facts not supported by the record.

As for the statement that Helton was a producer of methamphetamines, the district court stated

that “the one thing I know for sure is you’re not going to be cooking meth when you’re

incarcerated. . . . I don’t think you’ll be cooking meth [in prison].” To say that the district court

wrongfully accused Helton as being a methamphetamines producer is an exaggeration. The

district court, in making that statement, was trying to “promote respect for the law” and to “deter

future conduct”—both reasonable objectives of sentencing.           Furthermore, the district court

clarified the “cooking meth” statement stating that “I don’t think you’ll be able to harm the

community in terms of your drug activity.”


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United States v. James Helton, Jr.

         As for the second statement concerning the national opiate outbreak, the district court

was not punishing Helton for the opiate crisis, but instead discussing the crisis as it concerns the

seriousness of Helton’s crime. As the district court clearly stated,


                  That brings me to the third factor. And that is that this sentence needs to
         reflect the seriousness of this crime. And I gotta’ tell you, the longer I do this, the
         more—the clearer it comes to me the devastation that methamphetamine is
         imposing on our community, the devastation that opiate addiction is imposing on
         our community.

Furthermore, methamphetamine and opiate addiction is important because of Helton’s history of

abusing drugs, such as methamphetamine, amphetamines, and opiates. Lastly, as mentioned

above, the district court’s statement that Helton “return[ed] to this criminal conduct time and

again” is not a conclusion unsupported by the facts. See United States v. Hreha, 429 F. App’x

579, 585–86 (6th Cir. 2011) (citing Rita, 551 U.S. at 356).


   II.      Substantively Unreasonable Sentence

            a. Standard of Review

         In determining substantive unreasonableness, we consider the “totality of the

circumstances.” United States v. Tristan-Madrigal, 601 F.3d 629, 633 (6th Cir. 2010) (quoting

Gall, 552 U.S. at 51). “The essence of a substantive-reasonableness claim is whether the length

of the sentence is ‘greater than necessary’ to achieve the sentencing goals set forth in 18 U.S.C.

§ 3553(a).”    Id. at 632–33.     “The defendant shoulders the burden of showing substantive

unreasonableness.” United States v. Woodard, 638 F.3d 506, 510 (6th Cir. 2011). “A sentence

may be considered substantively unreasonable when the district court selects a sentence

arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing




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United States v. James Helton, Jr.

factors, or gives an unreasonable amount of weight to any pertinent factor.” United States v.

Conatser, 514 F.3d 508, 520 (6th Cir. 2008).


           b. Analysis

       Helton argues that due to his health that the 180-month sentence “condemns him to dying

in prison.” Helton argues that the district court dismissed these health concerns and imposed a

substantively unreasonable sentence. This argument is nothing more than a disagreement with

the district court’s balancing of the sentencing factors.


       Helton’s argument that his health should have resulted in a lower sentence “boils down to

an assertion that the district court should have balanced the § 3553(a) factors differently.”

Sexton, 512 F.3d at 332. This assertion is “‘simply beyond the scope of [our] appellate review,

which looks to whether the sentence is reasonable, as opposed to whether in the first instance we

would have imposed the same sentence.’” Id. (quoting United States v. Ely, 468 F.3d 399, 404

(6th Cir. 2006)).


       In addition, Helton’s argument that his sentence is functionally a life sentence is also

unpersuasive. See, e.g., United States v. Wolcott, 483 F. App’x 980, 989 (6th Cir. 2012)

(“Although [the defendant] may have wanted the district court to show even greater leniency

based on his age and health, the court’s decision not to do so does not render the sentence

unreasonable.”). “The fact that the district court did not give the defendant the exact sentence he

sought is not a cognizable basis to appeal, particularly where the district court followed the

mandate of section 3553(a) in all relevant respects.” United States v. Jackson, 466 F.3d 537, 540

(6th Cir. 2006).




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United States v. James Helton, Jr.

       Finally, Helton’s below-the-guideline sentence is entitled to a presumption of

reasonableness on review. See, e.g., Sexton, 512 F.3d at 332 (stating that a sentence within a

properly calculated guideline range is entitled to a presumption of reasonableness). Helton

provides no evidence to rebut this presumption.


       AFFIRMED.




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