                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 10a0435n.06

                                          No. 08-2485

                          UNITED STATES COURT OF APPEALS                               FILED
                               FOR THE SIXTH CIRCUIT                                Jul 15, 2010
                                                                             LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR
                                                       )   THE EASTERN DISTRICT OF
CORDELL SAIN,                                          )   MICHIGAN
                                                       )
       Defendant-Appellant.                            )


Before: SILER and CLAY, Circuit Judges; GRAHAM, District Judge.*

       SILER, Circuit Judge. Cordell Sain appeals his conviction of possession of marijuana with

intent to distribute and two related firearm charges.       He also challenges the substantive

reasonableness of his sentence. For the following reasons, we AFFIRM.

                   I. FACTUAL AND PROCEDURAL BACKGROUND

       Sain was convicted after a jury trial on three charges: possession with intent to distribute

marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D) (“Count One”); felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1) (“Count Two”); and possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (“Count Three”).

       On the date Sain was to be sentenced, he orally requested appointment of new counsel for

sentencing. The district court granted his request, appointed new counsel, and rescheduled the


       *
        The Honorable James L, Graham, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 08-2485
United States v. Sain

sentencing. On November 6, 2008, four days before Sain’s rescheduled sentencing hearing, he filed

a motion for new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure or, in the

alternative, a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255, asserting ineffective

assistance of trial counsel. Before ruling on that motion, the district court sentenced Sain to a term

of imprisonment of 60 months on Count One, 108 months on Count Two, to be served concurrently,

and 60 months on Count Three, to be served consecutive to Counts One and Two. This sentence was

in excess of his Guidelines range.1 Two days later, Sain filed a notice of appeal as to his conviction

and sentence. In February 2009, the district court denied Sain’s motion for new trial. Sain never

filed a notice of appeal from the district court’s denial of that motion.

                                            II. DISCUSSION

          Sain argued in his brief that the district court erroneously denied his motion for new trial and,

in the alternative, his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255. However, at

oral argument he conceded that we are without jurisdiction to review the district court’s decision on

that motion. See United States v. Hatfield, 815 F.2d 1068, 1073 (6th Cir. 1987) (concluding that

without a timely noticed appeal or an extension of the time for filing a notice of appeal, we lack

jurisdiction to review the district court’s decision on a Rule 33 motion). Nonetheless, he contends

that we should address the merits of his ineffective assistance of counsel and Fourth Amendment

claims.


          1
        Sain’s total offense level was 23 and he had a criminal history category of III. Thus, the
applicable Guidelines range for Counts One and Two was 57 to 71 months. He was also subject to
a mandatory term of 60 months for Count Three that must be served consecutive to the sentences for
Counts One and Two.

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United States v. Sain

A. Ineffective Assistance of Counsel and Fourth Amendment Claims

        Although we do not have jurisdiction to review the district court’s denial of his Rule 33

motion, it is conceivable that we could address his claim for ineffective assistance of counsel as a

separate ground for appeal. See United States v. Goodlett, 3 F.3d 976, 980 (6th Cir. 1993). We

generally “will not review an ineffective assistance of counsel claim raised for the first time on direct

appeal because the record has not been sufficiently developed for assessing the merits of the

allegation.” Id. “However, if the record has been sufficiently developed to allow this court to

evaluate counsel’s performance, this court will consider the ineffective assistance claim . . . .” Id.

        Sain asserts that the record clearly establishes that trial counsel’s performance was deficient,

because counsel did not move to exclude the evidence found during the search of the residence in

which he was found. We disagree. For example, there has been no factual development regarding

Sain’s standing to challenge the search of the residence or trial counsel’s possible motives in failing

to move to exclude that evidence. “Given the fact-specific nature of the claims and the absence of

a record directed at whether counsel’s performance was deficient, we decline to address the merits

of [Sain’s] ineffective-assistance-of-counsel claims on direct appeal.” United States v. Martinez, 430

F.3d 317, 338 (6th Cir. 2005). In addition, we cannot reach the merits of Sain’s Fourth Amendment

claim, because he did not raise it before the district court. See, e.g., United States v. Scarborough,

43 F.3d 1021, 1025 (6th Cir. 1994) (“Because defendant did not raise his Fourth Amendment

objections at any time during the District Court proceedings, he has waived his right to object and

we cannot now entertain these issues on appeal.”).



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United States v. Sain

B. Jury’s Request for Transcripts

        Sain argues that the district court’s failure to provide the jury with transcripts of the

testimony of two police officers upon its request violated his Sixth Amendment right to trial by an

informed jury and was an abuse of discretion. During deliberations, the jury requested to read the

testimony of two police officers. The court explained to the jury that it could not instantly produce

a copy of the transcript, but that it could, if absolutely necessary, create copies of the transcript and

provide them to the jury the next day. The court further instructed the jury to continue to deliberate

without the transcript. However, the court informed the jury if it needed the transcript to reach a

decision, the court would have the reporter prepare it. The jury returned its guilty verdict less than

two hours later.

        “When a jury submits questions during its deliberations,” such as requests for transcripts, “it

is within the discretion of the trial judge to deny or permit the request.” United States v. Toney, 440

F.2d 590, 591-92 (6th Cir. 1971) (holding that trial court did not abuse its discretion in denying

jury’s request for transcripts where the jury had heard the testimony for three days). There is no

recognized constitutional right to the production of trial transcripts to the jury. The district court’s

actions in this case cannot be construed as an abuse of its discretion.

C. Sain’s Sentence

        Sain challenges his sentence as substantively unreasonable, arguing that the district court

failed to consider certain mitigating factors in sentencing him to an above-Guidelines sentence. “We

review a district court’s sentencing determination for reasonableness under a ‘deferential abuse-of-

discretion standard.’” United States v. Petrus, 588 F.3d 347, 351 (6th Cir. 2009) (quoting United

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No. 08-2485
United States v. Sain

States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)). Sain challenges only the substantive

reasonableness of his sentence.

       When reviewing the substantive reasonableness of a sentence, we “take into account the

totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall

v. United States, 552 U.S. 38, 51 (2007). When the sentence is outside the Guidelines range, as

Sain’s sentence is, we “may consider the extent of the deviation, but must give due deference to the

district court’s decision that the [18 U.S.C.] § 3553(a) factors, on a whole, justify the extent of the

variance.” Id. The district court thoroughly explained its conclusion that an above-Guidelines

sentence was warranted in Sain’s case. The court’s sentencing opinion and order indicated that it

considered the § 3553(a) factors and concluded that a within-Guidelines “term of imprisonment

would not be sufficient to accomplish the objectives of . . . Section 3553(a).” In particular, the court

emphasized Sain’s lengthy criminal history, including five prior felony convictions. Although Sain

received relatively little imprisonment time for those convictions, he consistently violated his

probation and was subject to additional time in prison for those violations. Additionally, he

committed the current offense while he was released on bond awaiting trial for a separate federal

drug charge. The court focused on the fact that the penalties previously imposed on Sain did not

appear to deter adequately his criminal behavior and that additional imprisonment was necessary to

protect the public from his future crimes. Accordingly, the district court concluded an above-

Guidelines sentence was appropriate. Although it did not directly mention the mitigating factors

upon which Sain relies—his lack of education, difficult childhood environment, lack of parental

guidance, and early exposure to alcohol and marijuana—the court indicated that it considered all

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United States v. Sain

arguments presented to it. Moreover, the record supports the conclusion that the sentence was

reasonable.

       AFFIRMED.




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