                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1030n.06

                                           No. 11-5976

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                   FILED
UNITED STATES OF AMERICA,                        )                             Sep 26, 2012
                                                 )                       DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                       )
                                                 )   ON APPEAL FROM THE UNITED
v.                                               )   STATES DISTRICT COURT FOR THE
                                                 )   WESTERN DISTRICT OF TENNESSEE
JOSEPH THOMAS,                                   )
                                                 )
       Defendant-Appellant.                      )
                                                 )


       Before: COOK and STRANCH, Circuit Judges; LAWSON, District Judge.*


       COOK, Circuit Judge. Joseph Thomas pleaded guilty to one count of possession with intent

to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and received a

97-month prison sentence. Thomas challenges his sentence as unreasonable, and we affirm.


                                                I.


       Both before and during sentencing, Thomas advanced a substantive, policy-based reason why

the court should impose a lower sentence: that the Federal Sentencing Guidelines disproportionately

punish those convicted of crimes involving crack cocaine. For instance, the Guidelines subject the

possessor of 28 grams of crack cocaine to the same sentence as one who possesses 500 grams of



       *
       The Honorable David M. Lawson, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 11-5976
United States v. Thomas


cocaine powder—an 18-to-1 ratio that Thomas believes unfairly punishes crack-cocaine offenders.

See U.S. Sentencing Guidelines Manual § 2D1.1(c) (2011). The Fair Sentencing Act of 2010, Pub.

L. No. 111-220, 124 Stat. 2372, established the current ratio, lowering it from a harsher 100-to-1

ratio in response to criticism from courts and commentators. See United States v. Shull, 793 F. Supp.

2d 1048, 1050-57 (S.D. Ohio 2011) (recounting the history of the Fair Sentencing Act).


        Invoking cases criticizing the fairness of the Guidelines’ harsher punishment for offenses

involving crack cocaine, Thomas urged the district court to adopt a 1-to-1 ratio. The court

considered Thomas’s arguments, but resolved to apply the Guidelines’ 18-to-1 ratio. It then

calculated a total offense level of 29 and a criminal history category of II, yielding a Guidelines range

of 97 to 121 months. After considering Thomas’s remaining arguments for leniency, the court

imposed a sentence at the bottom of the Guidelines range: 97 months’ imprisonment. Thomas’s

arguments on appeal challenge the district court’s refusal to vary from the guidelines.


        District courts enjoy “broad discretion” to fashion a sentence within the Guidelines range.

See United States v. Overmyer, 663 F.3d 862, 863 (6th Cir. 2011) (citing United States v. Booker,

543 U.S. 220, 233 (2005)). The government notes that Thomas never argued to the district court

when asked the Bostic question the procedural error he now raises to this court—that his “sentence

was unreasonable because the district court . . . failed to recognize its authority to vary from the

Guidelines.” The government therefore urges us to review Thomas’s sentence for plain error. See

United States v. Simmons, 587 F.3d 348, 363 (6th Cir. 2009) (applying plain-error review after


                                                   2
No. 11-5976
United States v. Thomas


finding that the general procedural objection lodged by defense counsel at the close of the sentencing

hearing was insufficient to permit the district court to correct its perceived error or to provide a

detailed record for the appeals court to review). Because we find Thomas’s claims unavailing even

under the more lenient abuse-of-discretion standard, we need not resolve the issue. Accordingly, we

review the court’s exercise of its discretion for abuse and ask whether the sentence is procedurally

and substantively reasonable. Overmyer, 663 F.3d at 863 (citing Gall v. United States, 552 U.S. 38,

51 (2007)).


       Thomas attacks the procedural reasonableness of his sentence, arguing that the district court

treated the Guidelines’ drug-quantity ratio as mandatory. He relies on two cases: Kimbrough v.

United States, 552 U.S. 85 (2007), and Shull, 793 F. Supp. 2d at 1064. Kimbrough rejects the

contention that the Guidelines’ drug-quantity ratios are mandatory and holds that courts “may

consider the disparity between the Guidelines’ treatment of crack and powder cocaine offenses” in

fashioning a sentence. 552 U.S. at 91. Shull accepts this license to depart from the Guidelines’ ratio

and employs a 1-to-1 ratio. 793 F. Supp. 2d at 1064.


       According to Thomas, the district court ignored Kimbrough and the reasoning from Shull in

treating the 18-to-1 ratio as mandatory. He seizes on several statements that the court made in the

course of rejecting his policy-based argument for a lower sentence. We do not read these statements

as expressing a view that the Guidelines bound the court to sentence Thomas based on the 18-to-1




                                                  3
No. 11-5976
United States v. Thomas


ratio; rather, the transcript exhibits only the judge’s tendency to hew closely to a within-Guidelines

sentence.


       Reading the full transcript of the sentencing hearing confirms the conclusion that the court

recognized its authority to consider a different ratio in determining whether a within-Guidelines

sentence was “greater than necessary,” see 18 U.S.C. § 3553(a). At the outset, the court explained

that the Guidelines are “advisory” and that it could “move above or below the Guideline range.”

When Thomas’s counsel asked the district court to confirm that he would “not reject the eighteen

to one policy,” the court replied,


       I’m not going to reject [the 18-to-1 ratio], I just don’t think I should. But every case
       is considered under 18 U.S.C., Section 3553(a), and in that context, everything can
       be discussed.


The district court thus recognized its authority to vary from the Guidelines on policy grounds.

Nevertheless, it found the within-Guidelines range reasonable and refused to do so:


       [W]e have to look at the societal objectives of the Congress, which is to make society
       safe, and it is not going to be safe if judges always see the exception and never see
       the rule. The rule is that this [offense] is going to get a significant sentence. The
       exception is there are very few situations that fit into a really significant exception,
       and this really is not one of them. . . . I think that the sentence based on what I have
       heard today, and hearing from you is that it is adequate to meet the objectives under
       18 U.S.C., Section 3553(a) if we have the minimum guideline sentence as opposed
       to the maximum sentence or something significantly above that. It made a
       difference, but we have to have a sentence of that nature to achieve the objectives
       under the statute, because our goal is not to just deal with your problems, which are
       important, but to deal with society’s problem. And you and I both know that


                                                  4
No. 11-5976
United States v. Thomas


        society’s problem is a real big one, and so that’s why we end up with a sentence like
        this.


Next, the court noted that it was “required to consider” the Guidelines, and concluded that they

provided a valuable metric for assessing the seriousness of Thomas’s crime and avoiding sentencing

disparities:


        We’re required to consider the guidelines for a couple of reasons. They provide the
        principles under which we determine what may be an appropriate sentence. In this
        case, the guideline range again is eight years and one month to ten years and one
        month. It tells us a lot of things. It tells us it is not the most serious offense because
        we can go up to 40 years in this category. It also tells you it is a very substantial
        crime. We want to avoid unwarranted sentencing disparity. We don’t want you to get
        a sentence that is very different from somebody in El Paso, Texas or in New York
        City, or in Portland, Oregon, everybody ought to get about the same sentence for this
        conduct. So it’s very important to look at that.


Following an extended discussion of the § 3553(a) factors, the court sentenced Thomas to 97

months’ imprisonment, the minimum under Thomas’s Guidelines range. After pronouncing the

sentence, the court concluded that “[97 months is] the minimum under the Guideline range, the court

understanding that the court could be above that range or below that range.” The sentencing

transcript confirms that the court appreciated its discretion to vary.


        Under Simmons, “when a district court observes that the Guidelines are advisory and provides

no indication that policy disagreements are not a proper basis to vary, then a sentence within the

Guidelines range remains presumptively reasonable on appeal.” Simmons, 587 F.3d at 364. The

defendant points to United States v. Johnson, 407 F. App’x 8 (6th Cir. 2010), in which we stated that


                                                    5
No. 11-5976
United States v. Thomas


district judges “are not free to cede their discretion by concluding that their courtrooms are the wrong

forum for setting a crack-to-powder ratio.” Id. at 11. We vacated the sentence in that case because

we concluded that the district court “fail[ed] to recognize the extent of its discretion.” Id. This case

is different. Although some of the district judge’s statements at sentencing suggest that he believed

that it was Congress’s role to address the crack/powder disparity problem, others confirm that the

district judge recognized his authority to vary downward based on a disagreement with the policy

and simply declined to exercise that authority.


        We presume a sentence within the Guidelines range to be reasonable. See United States v.

Vonner, 516 F.3d 382, 389-90 (6th Cir. 2008) (en banc). Thomas points to nothing that disturbs that

presumption. Accordingly, we reject his challenge to the reasonableness of his sentence.


                                                  II.


        For these reasons, we AFFIRM.




                                                   6
