                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0444n.06

                                          No. 12-1693

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                               FILED
                                                                                  May 02, 2013
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )       ON APPEAL FROM THE UNITED
                                                     )       STATES DISTRICT COURT FOR
DEHAVEN LAPRIEST HOGG,                               )       THE EASTERN DISTRICT OF
                                                     )       MICHIGAN
       Defendant-Appellant.                          )
                                                     )
                                                             OPINION



Before: MERRITT, SUHRHEINRICH, and DONALD, Circuit Judges.


       BERNICE B. DONALD, Circuit Judge. Dehaven Hogg appeals his 262-month sentence on

the grounds that his sentence is procedurally and substantively unreasonable because the career

offender sentencing Guideline enhancement is unconstitutional. We disagree and AFFIRM.


                                                I.


       Between August 31, 2010, and September 28, 2010, Dehaven Hogg sold cocaine base to a

confidential informant on four occasions, selling a total of 4.99 grams. On September 30, 2010, law

enforcement officers searched Hogg’s girlfriend’s home and seized 28.3 grams of marijuana, a semi-

automatic handgun, and a .22 caliber sawed-off rifle with an obliterated serial number. They also

seized a five-shot revolver, $510.00 in cash, and narcotics equipment from Hogg’s wife’s home.
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United States v. Hogg

       This was not Hogg’s first offense. Since the age of seventeen, Hogg has managed to acquire

eleven convictions ranging from unlawful use of a motor vehicle to escape from prison. Under

U.S.S.G § 2D1.1(c)(12), Hogg’s base offense level for the present offenses was 16, based on the

amount of drugs involved. Because Hogg qualifies as a career offender, pursuant to U.S.S.G §

4B1.1, his offense level was raised to 34. The recommended Guidelines range was 262 to 327

months.


       Hogg filed a sentencing memorandum challenging the application of the career offender

Guideline, as well as the inclusion of uncharged offenses or dismissed charges in his presentence

report. At the sentencing hearing, however, Hogg did not dispute that he was correctly scored as a

career offender. Rather, he argued that the recommended sentencing Guidelines range was unfair

because he delivered street-level quantities of cocaine base. He also argued that the district court

was not bound by a congressional mandate in the Guidelines.


       The district court agreed that the Guidelines were advisory and analyzed the 18 U.S.C. §

3553(a) factors, and imposed a sentence of 262 months to run consecutively to Hogg’s existing state

sentence.1 Hogg filed a timely notice of appeal.




       1
           Hogg does not challenge the non-imprisonment components of his sentence.

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                                                  II.


        On appeal, Hogg claims that applying the career offender sentencing Guideline enhancement

violates the Separation of Powers Doctrine because it was improperly amended. The government

argues that Hogg failed to develop his argument as to this claim, and, as such, we should decline to

review it. Generally, undeveloped arguments are not reviewable on appeal. See generally, United

States v. Layne, 192 F.3d 556, 566-67 (6th Cir. 1999). Our review of the briefs, however, reveals

that Hogg did fully develop his argument. Therefore, we will review Hogg’s reasonableness

challenge.


        We review a defendant’s challenge to the reasonableness of his sentence for abuse of

discretion. United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007). A sentence must be both

procedurally and substantively reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). Thus, we


        must first ensure that the district court committed no significant procedural error,
        such as failing to calculate (or improperly calculating) the Guidelines range, treating
        the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
        selecting a sentence based on clearly erroneous facts, or failing to adequately explain
        the chosen sentence—including an explanation for any deviation from the Guidelines
        range.
Id.


        If “the district court’s sentencing decision is procedurally sound,” we “then consider the

substantive reasonableness of the sentence imposed . . . . When conducting this review, [we] will

. . . take into account the totality of the circumstances, including the extent of any variance from the



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United States v. Hogg

Guidelines range.” Id. “A sentence is substantively unreasonable if the district court selects a

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

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

Camiscione, 591 F.3d 823, 832 (6th Cir. 2010) (quoting United States v. Lapsins, 570 F.3d 758, 772

(6th Cir. 2009)) (quotation marks omitted). We apply a rebuttable presumption of reasonableness

to a sentence that falls within the advisory Guidelines range. See United States v. Vonner, 516 F.3d

382, 389–90 (6th Cir. 2008) (en banc).


        Hogg’s sentence is procedurally reasonable. The district court judge acknowledged that the

Guidelines were only advisory before proceeding to analyze the Section 3553(a) factors.

Specifically, the district court considered: Hogg’s lengthy criminal history, the items found during

the search of Hogg’s wife’s residence and Hogg’s girlfriend’s residence; Hogg’s limited education,

Hogg’s lack of income for the past ten years, and Hogg’s indebtedness to the state for child support.

Hogg’s procedural challenge is, therefore, without merit. Hogg has failed to point to anything in the

record that would suggest that his sentence is procedurally unreasonable, and we can find nothing

in the record to support this proposition. Hogg’s substantive challenge is, likewise, without merit.


        Hogg’s argument that the career offender Guidelines enactments are an unconstitutional

violation of the Separation of Powers Doctrine because the Sentencing Commission did not rely on

empirical data is misplaced. Never has any court held that the Sentencing Commission must base

amendments to the Guidelines on empirical data. The Supreme Court has explained that the

Sentencing Commission has the capacity to “base its determinations on empirical data and national

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United States v. Hogg

experience, guided by a professional staff with appropriate expertise.” Kimbrough v. United States,

552 U.S. 85, 108 (2007)(quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007)).

This, however, is a far cry from a judicial mandate requiring the Sentencing Commission to carry

out its charge in a specific manner. In fact, the Court has recognized that “in the ordinary case, the

Sentencing Commission’s recommendation of a sentence range will ‘reflect a rough approximation

of sentences that might achieve § 3553(a)’s objectives.’” Id. (quoting Rita v. United States, 551

U.S. 338, 350 (2007)). Hogg has not shown that his case is not “the ordinary case,” where the

Guidelines fail to achieve Section 3553(a)’s objectives.


        Moreover, Hogg’s argument that he would have been sentenced according to his base offense

level of 16, but for the career offender enhancement, is a classic rudimentary leap in logic. It is quite

possible that the district court would have rendered the same sentence without the career offender

Guideline’s enhancement based solely on Hogg’s lengthy criminal history. As the Court has

recognized, the sentencing judge has greater familiarity with the individual case and is in the best

position to determine the appropriate sentence. Id. We see no reason to find otherwise. Hogg has

not identified any basis for concluding that the sentence, at the low end of his Guidelines range, is

arbitrary or greater than necessary to comply with the purposes of Section 3553(a)(2). See United

States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012). For this reason, we find that Hogg’s

sentence is reasonable and the district court did not abuse its discretion.




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United States v. Hogg

                                          III.


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




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