                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 06a0169p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 05-1623
          v.
                                                     ,
                                                      >
 DANIEL BRANELL MORRIS,                              -
                           Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                 for the Western District of Michigan at Grand Rapids.
                   No. 04-00256—Richard A. Enslen, District Judge.
                                      Argued: April 27, 2006
                                Decided and Filed: May 19, 2006
                      Before: MARTIN, GUY, and CLAY, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Suzanne K. Klein, HOWARD & HOWARD, Kalamazoo, Michigan, for Appellant.
Andrew B. Birge, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for
Appellee. ON BRIEF: Scott Graham, HOWARD & HOWARD, Kalamazoo, Michigan, for
Appellant. Raymond E. Beckering III, ASSISTANT UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee.
       GUY, J., delivered the opinion of the court. MARTIN, J. (p. 6), and CLAY, J. (pp. 7-8),
delivered separate concurring opinions.
                                       _________________
                                           OPINION
                                       _________________
        RALPH B. GUY, JR., Circuit Judge. Defendant Daniel Morris pleaded guilty to one count
of interstate travel in aid of racketeering (18 U.S.C. § 1952(a)(3)(A)), in exchange for the dismissal
of the original charge of possession with intent to distribute five grams or more of cocaine base
(21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii)). Defendant was sentenced post-Booker to a term of 57
months of imprisonment. United States v. Booker, 543 U.S. 220 (2005). The only issue on appeal
is defendant’s challenge to the reasonableness of his sentence. After review of the record, we affirm.




                                                  1
No. 05-1623               United States v. Morris                                                               Page 2


                                                           I.
        On October 8, 2004, defendant purchased crack cocaine in Chicago, Illinois, and traveled
with it by bus to Benton Harbor, Michigan. Law enforcement had received a tip about his arrival
and met him with a drug detection dog. The dog alerted to his bag, and in it was found an aerosol
can with a false bottom that concealed 16.5 grams of crack cocaine. Defendant admitted that he had
purchased cocaine in Chicago, but claimed that he had only intended to purchase 6 or 7 grams to
use, share, and sell in Michigan. He explained that as he was negotiating with the dealer, a police
car approached and the dealer tossed the whole can into defendant’s car.
        Defendant was initially charged with possession with intent to distribute 5 grams or more
of cocaine, an offense punishable by a mandatory minimum 5-year term of imprisonment. That
charge was dismissed in exchange for defendant’s cooperation and his plea of guilty to the interstate
travel charge, for which the statutory maximum was 5 years. Although defendant’s sentencing
guideline range was determined to be 57 to 71 months’ imprisonment (based on a total offense level
of 23 and a criminal history category of III), the plea capped his sentence at 60 months.
         Defendant conceded that the sentencing guideline calculations were correct, but urged the
district court to sentence him substantially below the bottom of the advisory guideline range. In
support of this request, defendant emphasized that he had complied with the conditions of bond; had
enrolled in a training program to become an automobile mechanic; and had the support of his
parents, his girlfriend, and his church. Characterizing this case as the “wake up call” he needed to
get straightened out, defendant argued that a sentence of probation would allow him to complete the
training and find work in the field.
        At the outset, the district court expressed concern that the defendant’s criminal history was
underrepresented by the guideline calculation because it did not reflect more than a half dozen
arrests for possession of small amounts of marijuana for which charges were dropped or were
dismissed “with leave to reinstate.” While declining to impose an upward guideline departure on
this basis, the district court found it was a relevant consideration in fashioning an appropriate
sentence under 18 U.S.C. § 3553(a). After discussing the relevant § 3553(a) factors, the district
court sentenced defendant to a term of 57 months’ imprisonment. This appeal followed.
                                                          II.
        We review defendant’s post-Booker sentence for reasonableness. Booker, 543 U.S. at 260-
61; United States v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006). This court has held that this
entails consideration “not only [of] the length of the sentence but also the factors evaluated and the
procedures employed by the district court in reaching its sentencing determination.” United States
v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), cert. denied, 126 S. Ct. 1110 (2006). As such, a
sentence may be unreasonable “when the district judge fails to ‘consider’ the applicable Guidelines
range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply
selects what the judge deems an appropriate sentence without such required consideration.” Id.
(footnote omitted).
       While no longer bound by the sentencing guidelines, district courts nonetheless must
consider the applicable guideline range together with the other statutory factors. Booker, 543 U.S.
at 245-46; 18 U.S.C. § 3553(a)(4).1 A sentence that falls within a properly calculated advisory


         1
           Those other factors include “the nature and circumstances of the offense and the history and characteristics
of the defendant,” as well as the need for the defendant’s sentence “to reflect the seriousness of the offense,” “promote
respect for the law,” “provide just punishment,” “afford adequate deterrence,” “protect the public,” and “provide the
defendant with needed educational or vocational training, medical care, and other correctional treatment in the most
No. 05-1623               United States v. Morris                                                             Page 3


guideline range is credited with a rebuttable presumption of reasonableness. United States v.
Williams, 436 F.3d 706, 708 (6th Cir. 2006); see also Webb, 403 F.3d at 385 n.9 (rejecting argument
that within-guideline sentence is per se reasonable). This rebuttable presumption does not relieve
the district court of the obligation to consider other relevant statutory factors or sufficiently
articulate its reasoning so as to permit reasonable appellate review. Richardson, 437 F.3d at 554.
At the same time, it is not necessary that the district court explicitly reference each of the § 3553(a)
factors. Id.; see also Williams, 436 F.3d at 708 (no “ritual incantation” required).
        Review of the sentencing transcript reveals that the district court properly calculated the
guideline range, explicitly considered the other relevant sentencing factors, and articulated in an
exemplary manner its reasoning in determining the sentence and rejecting defendant’s plea for
further leniency. The district court stated, in part, as follows:
                 That brings me to the final sentencing requirement required by Booker, which
         is to determine whether Section 3553(a) sentencing factors dictate a sentence
         different from the advisory guideline range. Under Booker, as everybody knows, I’m
         not bound to apply the guidelines, but I must consult the guidelines, which I’ve done
         and am doing. I also must consult the factors under 3553(a).
                   Section 3553(a) requires me to impose a sentence that considers the history
         of this defendant criminal history wise, and it’s not a good one; reflect the
         seriousness of the offense, I consider eight drug possessions with intent to deliver
         serious; promote respect for the law and provide just punishment for the offense.
         The Court wants to also craft a sentence that affords adequate deterrence to future
         criminal conduct, and that’s what all this case has been about. I think the argument
         . . . is [that] he deterred by showing evidence that he hasn’t used drugs in the last
         couple of months and because he is enrolled in school and because his parents are
         supportive. I assumed they were supportive when he got the eight arrests for drugs
         in the past [but] that did not stop him from committing the crimes. However good
         the parents were or bad, he still committed eight crimes without question. And if
         there’s eight that I know of, I have to think there probably are 15 or 20, these small
         quantities of marijuana, small quantities of coke. In other words, he’s not been
         deterred because of his family or any other situation that occurred in Chicago. He
         made a terrible mistake by coming into Michigan and disclosing what his record in
         Chicago really was, which I doubt his parents really knew. They were either not
         aware of what was happening or they were unable to dissuade him from committing
         crimes involving drugs.
                 The most pertinent factor under 3553(a) is that the defendant is a person who
         has had regular frequent contacts with the criminal justice system involving his
         possession of controlled substances and importantly has failed to learn from those
         contacts. He has at best a very sporadic work history. In other words, it appears to
         be on paper, before this recent admission to the college program, to either be a full-
         time drug dealer. That is who he is. You have to look at yourself and ask, “Is that
         what I am? Am I 23 and look like a full-time drug dealer? I look at the report and
         see one interpretation, which is not necessarily erroneous. Is that . . . how you make
         your living? You’re a drug dealer. . . . You are going to deny that. You are going
         to say casual use. It didn’t have much to do with anything. Nothing dissuades you.
         You’re arrested and stopped by the police, that doesn’t stop you. How do we stop
         you? Anyway, he appears to be a drug dealer or a large scale user of drugs who is


effective manner.” 18 U.S.C. § 3553(a)(1)-(2); see also 18 U.S.C. § 3553(a)(3)-(7) (listing additional factors).
No. 05-1623           United States v. Morris                                                     Page 4


       not dissuaded by his previous contacts with the police. . . . I recognize that he has a
       potential for rehabilitation. I realize he has a supportive family, and I’m happy for
       both of those events. But I want him to be rehabilitated, and I cannot say that he has
       been rehabilitated to date. He’s been given the opportunities, several of them, and
       he is engaged in one right now. He also needs some kind of vocational training. He
       is involved in that by his attendance at Kennedy King in Chicago, but is that as good
       as a program within the Bureau of Prisons? The Court does not think it is, although
       the Court is unable to judge Kennedy King. The real question for me is how do I
       stop him from continued controlled substance violations?
               A minor sentence would also send the wrong message to the public, the
       message that repeated drug violations are not treated as serious offenses by the courts
       or by the police, and would treat this defendant with undue leniency compared to
       other drug offenders sentenced under like circumstances. In fact, he came within a
       hair of being convicted [of] a mandatory minimum five years to a maximum life
       sentence only because of the superiority of his lawyer and the agreeability of the
       lawyer for the prosecution did he escape that result.
              It’s the sentence of the Court that the defendant be committed to the custody
       of the Bureau of Prisons to be imprisoned for 57 months, which if I follow the
       guidelines, is the lower end of the guidelines. I’m not following the guidelines, I’m
       doing what I think is the right thing to do.
              On a positive note, Mr. Morris has a supportive family, high school diploma,
       and he’s made a good adjustment to pretrial supervision.
                On the negative side, he has a significant criminal record for a 23-year-old.
       He has convictions -- I didn’t mention this, convictions for trespassing, disobeying
       a police officer, eight possessions of cannabis and/or crack, a criminal trespass in a
       motor vehicle, meaning he was inside of somebody else’s car apparently attempting
       to steal it. He has several other arrests for possession of marijuana. He has a history
       of drug and alcohol abuse. I perceive him to be an immature 23-year-old who has
       yet to understand the seriousness of his criminal behavior. Previous contacts with
       the criminal justice system seem to have done nothing to deter him. If he continues
       with his pattern of criminal behavior, he is going to spend a great deal of time
       incarcerated in federal or state prisons. He’s never served a lengthy prison term.
                I believe that a sentence of 57 months is enough to . . . punish Mr. Morris for
       illegal behavior, protect the community from him, and . . . deter him and others from
       committing similar acts.
               While in custody, Mr. Morris should be able to take advantage of
       rehabilitative programs, such as vocational training and substance abuse counseling.
       And in this judgment, I recommend he take the substance abuse mandatory — not
       mandatory, the so-called 500 hour drug treatment program, which he would get an
       opportunity to do in the latter part of his sentence. I will make that recommendation.
The district court also expressly considered the defendant’s potential for rehabilitation, the fact that
he had a supportive family and had made a good adjustment to pretrial supervision, and his need for
vocational training and drug treatment. The district court then imposed a sentence at the bottom of
the guideline range.
       Defendant contends that his sentence was unreasonable “in light of all [the] facts and
circumstances” of the case. Specifically, although he had a number of prior arrests for drug
No. 05-1623           United States v. Morris                                                 Page 5


possession, defendant points out that his only prior jail sentence was for 127 days on the charge of
criminal trespass of a vehicle. Defendant also emphasizes the positive steps he managed to take in
the several months that he was on bond, including entering the training program, complying with
the conditions of bond, and securing the support of his church leaders. It is clear, however, that the
district court fully considered these facts and circumstances in connection with the § 3553(a) factors
and that the sentence imposed is an eminently reasonable one.
       AFFIRMED.
No. 05-1623          United States v. Morris                                               Page 6


                                   ______________________
                                      CONCURRENCE
                                   ______________________
       BOYCE F. MARTIN, JR., Circuit Judge, concurring. I concur in the holding that Morris’s
sentence was reasonable. I write separately to echo the Court’s conclusion that the district court
conducted an excellent post-Booker sentencing hearing. If district courts were to follow Judge
Enslen’s example in this case, reversals would be exceedingly rare.
No. 05-1623            United States v. Morris                                                       Page 7


                                     ______________________
                                        CONCURRENCE
                                     ______________________
         CLAY, Circuit Judge, concurring. The majority opinion cites United States v. Williams, 436
F.3d 706, 708 (6th Cir. 2006), for the proposition that a sentence within the Guidelines range creates
a “rebuttable presumption” of reasonableness. While the majority goes on to note that this
“rebuttable presumption” does not relieve the district court of its obligation to articulate its
sentencing rationale, I believe that the Williams’ “rebuttable presumption” language is surplusage
in light of controlling Sixth Circuit precedent that the district court must consider the § 3553 factors
and provide this Court with some indication that it has properly done so. See United States v. Webb,
403 F.3d 373, 385 n.8, n.9 (6th Cir. 2005) (requiring the district court to provide a reasoned
explanation for its sentence and rejecting the proposition that a sentence within Guidelines ranges
is per se reasonable). The Guidelines range is only one of a number of factors which § 3553 requires
sentencing judges to consider. Without an adequate statement from the sentencing court that it
properly considered other relevant § 3553 factors, and not just the Guidelines range, a sentence
should not be credited with a “rebuttable presumption” of reasonableness.
        The Supreme Court’s opinion in United States v. Booker, 125 S.Ct. 738 (2005), makes it
abundantly clear that the Sentencing Guidelines are just one factor to be included in the district
court’s sentencing analysis. See id. at 764 (“[T]he Act nonetheless requires judges to take account
of the Guidelines together with other sentencing goals.”) (referencing the § 3553(a) factors).
Without § 3553(b)(1), which had made the Guidelines mandatory and which Booker excised, district
courts are required to consider a series of factors listed in § 3553(a) in arriving at a sentence. The
applicable Sentencing Guidelines range constitutes only one of these factors. See Booker, 125 S.Ct.
at 765 (“[T]he Act nonetheless requires judges to impose sentences that reflect the seriousness of
the offense, promote respect for the law, provide just punishment, afford adequate deterrence,
protect the public, and effectively provide the defendant with needed education or vocational
training and medical care.”) Booker also established that appellate courts are to review district court
sentences for reasonableness, with an eye toward these same statutory factors. See id. at 767 (“The
courts of appeals review sentencing decisions for reasonableness.”) We have since held that in order
to review the reasonableness of a district court’s sentencing decision, we must have some
articulation from the district court of its underlying rationale for the sentence, and its rationale must
include considerations relevant in § 3553. See United States v. Jackson, 408 F.3d 301, 304 (6th Cir.
2005) (invalidating a sentence when the district court failed to sufficiently articulate its reasoning);
Webb, 403 F.3d at 385 n.8, n.9 (requiring district courts to provided a reasoned explanation for a
sentence). Any opinion from this Court which would affirm a district court sentence without such
a reasoned explanation and articulated basis in § 3553 therefore flies in the face of relevant statutory
requirements and controlling Supreme Court and Circuit precedent.
       I believe Judge Martin explained the proper place of the Williams holding in this Circuit’s
case law in United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006):
        Williams does not mean that a Guidelines sentence will be found reasonable in the
        absence of evidence in the record that the district court considered all of the relevant
        section 3553(a) factors. A sentence within the Guidelines carries with it no
        implication that the district court considered the 3553(a) factors if it is not clear from
        the record, because, of course, under the Guidelines as mandatory, a district court
        was not required to consider the section 3553(a) factors. It would be unrealistic to
        now claim that a Guideline sentence implies consideration of those factors.
No. 05-1623           United States v. Morris                                                 Page 8


       Moreover, Williams does not mean that a sentence within the Guidelines is
       reasonable if there is no evidence that the district court followed its statutory
       mandate to “impose a sentence sufficient, but not greater than necessary” to comply
       with the purposes of sentencing in section 3553(a)(2). Nor is it an excuse for an
       appellate court to abdicate any semblance of meaningful review. Appellate review
       is more important because the Guidelines are no longer mandatory. Under the
       mandatory Guideline system, appellate review was not integral to assuring
       uniformity. Now, with the advisory Guidelines and more sentencing variables,
       appellate review is all the more important in assuring uniformity and reducing
       sentencing disparities across the board. See S. REP. NO. 98-225, at 151 (1983);
       United States v. Mickelson, []433 F.3d 1050 . . . (8th Cir. January 6, 2006).
       Hopefully, future panels of this Court will not attempt to use the “rebuttable presumption”
language of Williams as semantic leverage simply to avoid the considered appellate review we are
duty-bound to perform. It should be remembered that Circuit precedent which antedates Williams
requires district courts to consider all relevant § 3553 factors and make a record which provides this
Court with some indication that such consideration was properly undertaken. See Jackson, 408 F.3d
305; Webb, 403 F.3d at385 n.8, n.9.
