            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 12a0736n.06
                                                                                   FILED
                                      No. 11-5551                              Jul 10, 2012
                      UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                           FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                        )
                                                 )      ON APPEAL FROM THE
       Plaintiff-Appellee,                       )      UNITED STATES DISTRICT
                                                 )      COURT FOR THE EASTERN
v.                                               )      DISTRICT OF TENNESSEE
                                                 )
JOSHUA BARNES,                                   )      OPINION
                                                 )
      Defendant-Appellant.                       )
______________________________


Before: SILER and WHITE, Circuit Judges; REEVES, District Judge.*

       HELENE N. WHITE, Circuit Judge. Defendant-Appellant Joshua Barnes appeals

his 100-month sentence imposed after he pleaded guilty of conspiracy to distribute and

possess with the intent to distribute oxycodone and marijuana, 21 U.S.C. §§846, 841(a)(1),

(b)(1)(C), & (b)(1)(D); attempt to possess with intent to distribute oxycodone, 21 U.S.C.

§§846, 841(a)(1) & (b)(1)(C); 18 U.S.C. §2; and possession with intent to distribute

marijuana. 21 U.S.C. §841(a)(1) & (b)(1)(D); 18 U.S.C. §2. We AFFIRM.

                                            I.

       A.     Factual Background

       On June 1, 2010, a confidential informant (“CI”) working with Tennessee law

enforcement officials contacted George Joslin to inform him that the CI had a friend – in


       *
         The Honorable Danny C. Reeves, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
reality an undercover officer – who was trying to sell 500 stolen oxycodone tablets for

$6,000. Joslin told the CI that he had a friend, later revealed as Defendant Barnes, who had

expressed interest in obtaining oxycodone. Barnes had broken his leg in an auto accident and

become addicted to oxycodone.

       Joslin contacted Barnes, who, because he did not have the money to buy the pills,

asked co-defendant Kylan Myers if he was interested and could finance the purchase. After

learning the pills were 40-mg tablets, Myers agreed to purchase the pills for $5,000. Myers

soon realized he was unable to procure the entire $5,000, so Barnes contacted Joslin to

determine whether the CI would be willing to accept $4,000 and one pound of marijuana.

The CI told Joslin that the new terms were acceptable.

       The next day, June 2, Barnes arrived at Myers’s home, where Myers gave Barnes a

loaded firearm. They drove to Shelbyville, Tennessee, first to a mobile home where they met

the CI and Joslin, and then to a convenience store, where they met the undercover officer,

Agent Childers. Agent Childers showed Barnes and Myers one bottle of the pseudo-

oxycodone pills, which were 80-mg tablets instead of the expected 40-mg tablets, and

allowed them to count the pills. Myers handed the pills to Barnes, who counted them. Agent

Childers testified that although he spoke mostly with Myers and Myers gave him the

marijuana, Myers appeared to be looking to Barnes for approval. Agent Childers also

testified that the two men seemed to be working together.

       After Agent Childers gave the take-down signal, police arrested Barnes and Myers.

Barnes did not contribute any of the money or marijuana used to purchase the oxycodone,

and Myers admitted at trial that he was the “main player” in the transaction. Myers had


                                             2
agreed to give Barnes a “couple of pills” for his help, but Myers alone was planning to sell

the rest for profit.

         B.      Procedural History

         On June 8, 2010, the grand jury returned a five-count indictment against Barnes and

Myers.     Count One jointly charged Myers and Barnes with conspiring to distribute

oxycodone and marijuana. 21 U.S.C. §§846 & 841(a)(1), (b)(1)(c) & (b)(1)(D). Count Two

alleged that they attempted to possess oxycodone with intent to distribute. 21 U.S.C. §§846

& 841(a)(1), (b)(1)(c); 18 U.S.C. §2. Count Three charged them with possession of

marijuana with intent to distribute. 21 U.S.C. §§841(a)(1), (b)(1)(D); 18 U.S.C. §2. Counts

Four and Five charged Myers and Barnes respectively with possessing a firearm in

furtherance of a drug-trafficking crime. 18 U.S.C. § 924(c). On September 1, 2010, the

Magistrate Judge entered an order setting bond, with the condition that Barnes receive

treatment through the Council for Alcohol and Drug Abuse Services (“CADAS”). Barnes

successfully completed the program on October 15, 2010.

         On January 25, 2011, Barnes informed the government that he would plead guilty to

the drug charges. Myers pleaded guilty to Counts One and Four and agreed to cooperate with

the government. Barnes contested his guilt on the firearm charge, and after a two-day trial

during which Myers testified against Barnes, the jury acquitted Barnes of the gun charge.

         Barnes’s Presentence Investigation Report (“PSR”) described the offense as involving

500 pills, at 80-mg per pill, for a total of 40 grams of oxycodone. The conversion ratio under

the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) for oxycodone to

marijuana resulted in a starting offense level of 26. Applying a two-level increase for


                                              3
possessing a gun and a three-level decrease for accepting responsibility, the ending offense

level was 25, which, coupled with Barnes’s criminal history category of V, resulted in a

Guidelines range of 100 to 125 months’ imprisonment.

       Barnes filed a motion for a downward departure and a motion for a variance, raising

a series of objections. The district court overruled Barnes’s objections and sentenced him

to 100 months’ imprisonment for Counts 1 and 2 and 60 months’ imprisonment for Count

3, to be served concurrently. Barnes timely appealed his sentence.

                                             II.

       This court reviews sentences for reasonableness, which has both procedural and

substantive components. See Gall v. United States, 552 U.S. 38, 46 (2007); see also United

States v.Reilly, 662 F.3d 754, 757 (6th Cir. 2011). Barnes only challenges the procedural

reasonableness of his sentence. A sentence is procedurally unreasonable “if the district court

fails to calculate (or improperly calculates) the Guidelines range, treats the Guidelines as

mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly

erroneous facts, or fails to adequately explain the chosen sentence.” United States v. Baker,

559 F.3d 443, 448 (6th Cir. 2009). We employ an abuse-of-discretion standard of review for

reasonableness, and within-Guidelines sentences raise a rebuttable presumption of

reasonableness. See United States v. Christman, 607 F.3d 1110, 1117 (6th Cir. 2010).

                                             III.

       Barnes moved for a downward departure pursuant to U.S.S.G. § 4A1.3(b)(1), which

provides in relevant part, “[i]f reliable information indicates that the defendant’s criminal

history category substantially over-represents the seriousness of the defendant’s criminal


                                              4
history or the likelihood that the defendant will commit other crimes, a downward departure

may be warranted.” The district court denied Barnes’s motion. A district court’s decision

not to grant a downward departure is generally grounds to vacate a sentence only if the

district court was not aware of, or did not understand, its discretion to grant the downward

departure. United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009) (citation and

quotation marks omitted); Reilly, 662 F.3d at 759. Barnes argues the district court erred in

two ways in rejecting his arguments involving his criminal history.

        First, Barnes argues the district court erred in refusing to consider his post-offense

rehabilitation efforts – specifically, his successful treatment through CADAS – in deciding

whether to grant a departure. The district court explained that although Barnes’s successful

CADAS treatment was “admirable,” and it could “take note of it,” the treatment nevertheless

“shouldn’t factor in to the calculation of his criminal history, because it doesn’t really fall

within the category of history yet.” Tr. at 38. Barnes argues that this statement shows that

the district court failed to appreciate its authority to consider his CADAS treatment. See

United States v. Hairston, 502 F.3d 378, 384 (6th Cir. 2007) (holding that district court can

take post-offense rehabilitation into account in fashioning a sentence).

        The district court’s statement reflects the common-sense conclusion that Barnes’s

CADAS treatment was too recent to shed light on the likelihood that he would recidivate.

The district court stated that it could “take note of” Barnes’s treatment, but ultimately

concluded, “it’s been demonstrated to me by the proof Mr. Barnes is almost certain to

recidivate.” The district court understood that it could consider Barnes’s post-offense

rehabilitation.


                                              5
        Second, Barnes argues that the district court erred by focusing solely on the

recidivism prong of §4A1.3(b)(1) and effectively ignoring his other ground for departure –

namely, that category V over-represented the seriousness of his prior offenses, which were

minor and mostly related to his inability to complete probation. Barnes highlights that when

he asked the district court about the seriousness of the prior offenses, the district court

responded, “in terms of being indicative of the likelihood to recidivate, I would classify them

as serious.” Barnes thus contends the district court misapplied the Guidelines because

§4A1.3(b)(1) provides two distinct grounds on which to depart: if the criminal history

category substantially over-represents the seriousness of the defendant’s criminal history or

if the criminal history category substantially over-represents the likelihood that the defendant

will commit other crimes. Barnes contends the district court only seriously considered

whether the criminal history category overstated his likelihood to commit other crimes.

         Barnes’s argument to the district court relied heavily on his rehabilitation, so the

district court’s emphasis on recidivism is understandable. Beyond this, Barnes points to no

statements implying the district court did not understand its discretion to depart based on the

non-severity of Barnes’s prior criminal conduct. See United States v. Santillana, 540 F.3d

428, 431 (“[W]e presume that the district court understood its discretion, absent clear

evidence to the contrary.”) (citation omitted). As Barnes’s counsel was listing the offenses

and criminal history points, the district court repeatedly pointed out that for most of the

offenses, Barnes did not receive any criminal history points, concluding, “[t]hey’re [sic] just

too many paradoxes in the argument.” Tr. at 36-37. The paradox is that Barnes was arguing

that category V over-represented his criminal history, but the majority of his offenses – 14


                                               6
out of 20 – did not receive any criminal-history points. Barnes has not demonstrated that the

district court did not understand or refused to exercise its discretion.

       Accordingly, the district court did not commit procedural error in its determination

that Barnes’s category V did not substantially over-represent his criminal history or

likelihood of recividism.

                                             IV.

       Barnes next contends the district court failed to adequately respond to certain non-

frivolous arguments. A sentencing judge has an obligation to “set forth enough [of a

statement of reasons] to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal decision making authority.”

Rita v. United States, 551 U.S. 338, 356 (2007) (citation omitted); United States v. Brooks,

628 F.3d 791, 796 (6th Cir. 2011). A district court is not, however, required to conduct a

point-by-point discussion, as long as the district court conducted a “meaningful sentencing

hearing and truly consider[ed] the defendant’s arguments.” United States v. Gunter, 620

F.3d 642, 646 (6th Cir. 2010). The district court must adequately “explain[] the basis for

rejecting” a non-frivolous argument. United States v. Lalonde, 509 F.3d 750, 769-70 (6th

Cir. 2007).

       Barnes points to two non-frivolous arguments for which he asserts the district court

did not adequately explain its conclusions. First is Barnes’s argument involving the

oxycodone conversion ratio. However, the district court engaged in a lengthy and exhaustive

discussion of Amendment 657, the Amendment through which the Sentencing Commission

altered the oxycodone conversion ratio, as well as the implications of the Supreme Court’s


                                              7
decision in Kimbrough. Kimbrough v. United States, 552 U.S. 85 (2007). The thrust of

Barnes’s argument was that Amendment 657 is arbitrary and capricious, specifically its use

of 10-mg as the baseline and insofar as it did not treat other narcotic analgesics similarly.

After recognizing that its discretion was “extraordinarily broad,” Tr. at 41, the district court

rejected Barnes’s argument:

        I do find that the guidelines as they relate to Oxycodone are based upon a
        rational analysis of the appropriate factors, scientific, sociological, and
        otherwise, and, therefore, the Court can be skeptical of them but in this case
        finds that they are at least rationally based, and, quite honestly, based upon
        all of the evidence in front of me probably, probably as reflective of the
        balancing act between scientific and sociological evidence that goes into
        these balances as any other drug quantity, any other drug quantity analysis
        incorporated in the guidelines, so -- that’s my ruling on that.

Id. at 93. When Barnes asked for more specific findings on this issue, the district court

explained that it did not “accept the argument that all of the drug quantity, all of the drug

quantities standards within the guidelines are arbitrary and capricious.” Id. at 97. Whether

the district court abused its discretion in ruling on the policy underlying Amendment 657 is

a separate question, discussed in more detail below, but the district court obviously

considered the argument and explained its basis for rejecting it.

        The second non-frivolous argument Barnes submits the district court did not consider

or adequately explain is his argument that his case is “outside the heartland” of cases the

Guidelines are intended to cover. Barnes asserts he and Myers were marijuana dealers with

no inclination to deal in oxycodone until the reverse-sting operation involved here, and that

they expected the oxycodone tablets to be 40-mg instead of 80-mg. From the outset, the

district court pointed out that this argument was a sentencing entrapment argument, later



                                               8
reiterating that it was “having trouble understanding why this isn’t an entrapment argument.”

Id. at 71. The district court explained that Barnes and Myers were marijuana dealers and

that, therefore, “they had the propensity to commit the crime before the state ever introduced

its reverse sting operation into this.” Id. at 85. Barnes’s counsel conceded that sentencing

entrapment requires government misconduct. The transcript shows that the district court

viewed Barnes’s “outside the heartland” argument as a sentencing entrapment argument; that

no government misconduct was involved; and that Barnes had the propensity to engage in

drug deals. Revealingly, Barnes does not argue that the district court was incorrect or

otherwise challenge the underlying bases for the district court’s ruling. Furthermore, as

Barnes concedes, the difference between 40-mg pills and 80-mg pills would not change

Barnes’s base-offense level. Id. at 8-10.

       The district court “conducted a meaningful sentencing hearing and truly consider[ed]

the defendant’s arguments,” Gunter, 620 F.3d at 646, but disagreed and adequately explained

the basis for its disagreement. The district court did not commit procedural error on this

ground.

                                              V.

       Barnes next contends the district court presumed the reasonableness of the Guidelines

conversion ratio for oxycodone and, relatedly, failed to appreciate its authority to reject the

ratio based on a policy disagreement. See generally Spears v. United States, 555 U.S. 261,

265-66 (2009) (“[D]istrict courts are entitled to reject and vary categorically from the

crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”). It is well-

settled that the Guidelines are not mandatory. United States v. Booker, 543 U.S. 220, 266-67


                                              9
(2005). Moreover, a district court may reject the Guidelines based solely on a policy

disagreement, even disagreements not involving the crack-to-powder cocaine ratio.

Kimbrough v. United States, 552 U.S. 85, 108-09 (2007); United States v. Herrera-Zuniga,

571 F.3d 568, 584 (6th Cir. 2009). A district court commits procedural error by failing to

recognize its authority to vary from the Guidelines based only on a policy disagreement.

United States v. Guest, 564 F.3d 777, 779-80 (6th Cir. 2009); United States v. Johnson, 553

F.3d 990, 992 (6th Cir. 2009).

        Amendment 657 changed the oxycodone-to-marijuana conversion ratio, United States

v. Nassar, 373 F. App’x 564, 565 (6th Cir. 2010), and, according to Barnes, resulted in an

unfair and disproportionate sentencing scheme. Barnes emphasizes that the marijuana-

conversion ratio for other pharmacologically similar drugs was not similarly modified to be

based on the actual amount of the drug involved and that the Sentencing Commission’s use

of 10-mg of oxycodone as the baseline was arbitrary.1


        1
         Oxycodone is classified as a narcotic analgesic, along with several other controlled
substances, such as morphine, codeine, and hydrocodone. Since 1991, controlled substances
are compared to marijuana in determining a sentencing range. U.S.S.G. § 2D1.1 application
n.10 (2010); see also United States v. Lundy, 366 F. App’x 590, 593 n.1 (6th Cir. 2010)
(discussing conversion ratio). Prior to Amendment 657 in 2003, oxycodone was treated
similarly to other strong narcotic analgesics in terms of its conversion ratio to marijuana.
Amendment 657 changed this and sought to correct a disparity due to the amount of
oxycodone contained in different formulations of pills, such as Percocet and Oxycontin.
Oxycontin contains a much higher amount of actual oxycodone than Percocet, but
individuals selling Percocet before Amendment 657 were punished at the same level as
people selling Oxycontin. Amendment 657 changed the baseline to the amount of actual
oxycodone in a pill instead of the total weight of the pill, thereby significantly increasing the
penalty for pills with higher amounts of oxycodone. Amendment 657 did not make such a
change in other narcotic analgesics. See generally United States v. Ekasala, 596 F.3d 74, 75
(1st Cir. 2010). Amendment 657 also used 10-mg as the baseline. See also United States
v. Muza, 232 F. App’x 934 (11th Cir. 2007) (rejecting attempt to apply Amendment 657 to
hydrocodone).

                                               10
       Barnes points to several statements that, in his view, demonstrate that the district

court did not recognize its authority to vary from, and presumed the reasonableness of, the

Guidelines’ conversion ratio, including the following:

       You know, I’ll be honest, I mean, I’m not sure that the Court is enough of
       either a chemist or, you know, a biologist or for that matter a sociologist to
       determine why the guidelines and really, as I say, I think it’s the federal
       government as a whole either through, I guess, the Food and Drug
       administration or the Drug Enforcement Administration that come up with
       these, you know, classifications of drugs and, you know, in this context, the
       criminalization, the criminal punishment that should be applicable. The
       Court understands that it’s based upon some sort of balancing, as I said
       before, between the beneficial affects [sic]to society or an individual if the
       drug is used properly versus the detrimental affects [sic]. I mean, that is what
       we got into with the whole crack versus powder cocaine thing. While I
       understood sort of the sociological arguments about that, I mean, how am I,
       how is a court, individual court here to second guess that sort of thing?

Tr. at 46. The district court made several similar statements expressing a general reluctance

to question the Sentencing Commission’s determination involving Amendment 657.

       The district court engaged in a lengthy dialogue with Barnes’s counsel about this

issue, explaining that Barnes’s argument would require every district court in every drug

trafficking case to start from scratch and inquire into the sociological, chemical, biological,

and policy bases for a particular drug-conversion ratio. The district court insisted at various

points that it was not presuming that the conversion ratio was reasonable, id. at 56, 102, and

turned the argument around by asking Barnes’s counsel why some of the other drug-

equivalency tables were not arbitrary and capricious:

       But by making that argument, aren’t you then – why are the Hydrocodone
       guidelines based upon rational basis, why aren’t they arbitrary and capricious
       as well? . . . . [Y]ou’re doing the same thing you’re telling me I can’t do in
       the case because you are then assuming that the Hydrocodone guidelines must
       be the basis of empirical rational, you know, analysis.


                                              11
Id. at 66. The district court concluded that the oxycodone-conversion ratio was “based upon

a rational analysis of the appropriate factors, scientific, sociological, and otherwise,” id. at

93, and that the “Sentencing Commission did engage in a reasoned analysis of the

appropriateness of these particular sets of guidelines and drug quantities.” Id. at 97.

        The district court was obviously reluctant to accept Barnes’s argument, but

expressing reluctance is not tantamount to failing to consider the argument or to considering

the oxycodone-conversion ratio sacrosanct. See Brooks, 628 F.3d at 800 (“[T]he fact that a

district court may disagree with a Guideline for policy reasons and may reject the Guidelines

range because of that disagreement does not mean that the court must disagree with that

Guideline or that it must reject the Guidelines range if it disagrees.”) (emphasis added). The

Brooks court explained that forcing a sentencing judge to “‘delve into the history of a

guideline so that he can satisfy himself that the process that produced it was adequate to

produce a good guideline’” would result in “‘unmanageable’” sentencing hearings. Id.

(quoting United States v. Aguilar-Huerta, 576 F.3d 365, 367-68 (7th Cir. 2009)); accord

Eksala, 596 F.3d at 75-76 (“As we held in rejecting a similar argument as to crack/powder

disparity, the mere fact that a sentencing court has the discretion to disagree with the

guidelines on policy grounds, does not mean that it is required to do so.”).

        So it is here. Barnes must show more than “mere conjecture that the district court

may have felt constrained by the Guidelines.” Guest, 564 F.3d at 781. The extensive back-

and-forth indicates that the district court grappled with the issue and that it understood its




                                              12
discretion.2 See, e.g., Nassar, 373 F. App’x at 566 (“The extent of argument alone

undermines the conclusion that the court felt itself bound by the Guidelines.”). The Court

noted that it “was not bound by what they do,” Tr. at 48, and that it could be “skeptical” of

the Guidelines. Id. at 93. The district court fully considered Barnes’s argument, appreciated

its discretion to reject Amendment 657, and chose not to disagree on policy grounds.

Barnes’s challenge fails on this basis, as well.

                                             VI.

       Barnes’s final argument is that the district court did not adequately consider the

nature and circumstances of his offense under §3553(a) and relied on clearly erroneous facts

in arriving at a sentence. A district court must impose a sentence sufficient, but not greater

than necessary, to comply with the purposes of sentencing, paying specific attention to seven

factors, including the nature and circumstances of the offense. 18 U.S.C. §3553(a); Gall, 552

at 49. A district court need not engage in a ritualistic incantation of the §3553(a) factors as

long as its explanation permits a meaningful appellate review. United States v. Moon, 513

F.3d 527, 539 (6th Cir. 2008). “[A] court relies on clearly erroneous facts when the

sentencing judge relies upon erroneous information and the information in question appears

to have been an important factor in determining the sentence.” United States v. Cunningham,

669 F.3d 723, 730 (6th Cir. 2012) (citation and quotation marks omitted).




       2
        Although the district court never expressly stated that it agreed with the policy
underlying Amendment 657, it did come close, asking Barnes’s counsel why it would be
inappropriate to “infer” that the 10-mg baseline reflected a reasoned judgment and stating
that Amendment 657's attempt to establish proportionality was admirable.

                                              13
         Barnes’s basic argument appears to be that once the district court considered his

argument for a minor-role reduction in the context of his earlier motion for a downward

departure, it refused to consider it again in its analysis of the §3553(a) factors, particularly

the nature and circumstances of Barnes’s offense. Earlier in the hearing, Barnes argued that

he was entitled to a downward departure pursuant to U.S.S.G. §3B1.2 based on his role in

the conspiracy, which he portrays as a facilitator or go-between.3 The district court

recognized that it would also have to consider Barnes’s role again when it assessed the

§3553(a) factors. Tr. at 27. After hearing testimony from Agent Childers, the district court

rejected Barnes’s §3B1.2 minor-role argument.             Barnes cites no authority for the

counterintuitive proposition that a district court cannot rely on its earlier findings and

analysis involving a related issue when it considers the §3553(a) factors later in the

sentencing hearing. Although it is true that Barnes was not to receive more than a few pills

or sell any of the pills, Barnes solicited Myers’s participation in the deal; the deal would not

have occurred but for Barnes; Barnes was present and carrying a firearm at the deal; Barnes

counted the pills; and, according to Agent Childers, Myers appeared to be looking to Barnes

for approval during the transaction. The district court did not abuse its discretion on these

facts.

         Barnes’s objection that the district court relied on clearly erroneous facts also misses

the mark. Viewed in context, the district court did not rely on any facts involving additional

conspiracies; instead, the district court was referencing Barnes’s prior drug dealing in



         3
         Barnes does not contest, at least explicitly, the district court’s finding that he was not
entitled to a §3B1.2 minor-role reduction.

                                                14
marijuana to dispute Barnes’s point that the two men did not have any predisposition to deal

in oxycodone. The statements about other drug deals were simply a set of potential facts

used as an illustration. Barnes also argued that the district court ignored Myers’s testimony

that he was the main player in the transaction. But finding certain testimony entitled to little

weight is not tantamount to relying on clearly erroneous facts. The district court did not find

Myers’s statements dispositive of whether Barnes’s role was minor. The district court’s

finding that Barnes was not a minor participant was based on, among other things, testimony

that Barnes set up the drug deal, was present at the transaction, and that Myers appeared to

look to Barnes for approval during the transaction. Barnes fails to articulate any facts upon

which the district court actually relied that were clearly erroneous.

         The district court considered the nature and circumstances of the offense and did not

rely on clearly erroneous facts. Accordingly, Barnes’s procedural reasonableness challenge

fails.

                                             VII.

         For the foregoing reasons, we AFFIRM Barnes’s sentence.




                                              15
