                                      File Name: 11a0461n.06

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                            No. 07-1284

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                      FILED
UNITED STATES OF AMERICA,
                                                                                  Jul 08, 2011
          Plaintiff-Appellee,                                              LEONARD GREEN, Clerk

v.                                                          ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
DUANE MILTON MCCLAIN, JR., aka Deuce,                       COURT FOR THE WESTERN
                                                            DISTRICT OF MICHIGAN
          Defendant-Appellant.


                                                        /

Before:          MARTIN, NORRIS, and SILER, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Duane Milton McClain, Jr. pled guilty to

conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, five

kilograms or more of cocaine, one kilogram or more of heroin, and 100 kilograms or more of

marijuana. McClain’s Sentencing Guidelines range was from twelve years and seven months to

fifteen years and eight months. The district court sentenced him to thirteen years imprisonment. On

appeal, McClain makes four main arguments: (1) the district court committed plain error by failing

to respond to his mitigation argument; (2) the district court committed plain error by failing to state

his Guidelines range on the record; (3) the district court’s drug quantity determination was clearly

erroneous; and (4) we should remand this case to the district court to consider McClain’s motion for
No. 07-1284
United States v. McClain
Page 2

reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Because these arguments are not

meritorious, we AFFIRM the decision of the district court.

                                              I. BACKGROUND

         McClain was involved in a large-scale drug trafficking organization buying and selling

powder cocaine, crack cocaine, and marijuana from 2004 until his arrest on September 20, 2005.

McClain and a number of codefendants were charged with a variety of crimes, and McClain pled

guilty to conspiracy to distribute and possess with intent to distribute fifty or more grams of cocaine

base, five kilograms or more of cocaine, one kilogram or more of heroin, and 100 kilograms or more

of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), and 846.1 The parties agreed

that the conspiracy involved at least five kilograms of powder cocaine and at least fifty grams of

cocaine base.

         The Probation Department prepared a Presentence Report, which compiled a number of

statements from McClain’s codefendants regarding the amount of drugs that should be attributed to

him. The Report recommended that he be held responsible for ninety kilograms of powder cocaine

and 160 grams of crack cocaine based on statements by codefendant Jamokenteyatte Hampton.

These amounts yielded a recommended base offense level of thirty-six.

         McClain objected to the drug quantity that the Report attributed to him. He submitted a

sentencing memorandum in which he argued that although Hampton’s statements supported a base




        1
           McClain was also charged with other drug crimes, but the United States agreed to dismiss those charges, and
they are irrelevant to this appeal.
No. 07-1284
United States v. McClain
Page 3

offense level of thirty-six, the statements of several other codefendants supported a base offense level

of only thirty-four.

        The district court conducted a sentencing hearing on February 15, 2007. McClain argued,

consistent with his sentencing memorandum, that his base offense level should be set below thirty-

six. The district court stated that it had reviewed the guilty plea transcript, and later noted that it had

reviewed the sentencing memorandum. It stated that because McClain pled guilty to conspiracy, he

was responsible for any drug quantities that were a reasonably foreseeable consequence of the

conspiracy. The district court found McClain to be responsible for at least fifteen but less than fifty

kilograms of powder cocaine and at least 150 but less than 500 grams of cocaine base, yielding a

base offense level of thirty-four. The district court granted McClain a three-level downward

departure for acceptance of responsibility and reduced his offense level to thirty-one, with a criminal

history category IV. Defense counsel asked the district court to consider McClain’s cooperation in

an unrelated state murder case, and the government confirmed his cooperation.

        McClain’s offense level and criminal history category yielded a Guidelines range of twelve

years and seven months to fifteen years and eight months, although the district court did not state this

range in terms of months on the record. The district court addressed all of the section 3553(a)

sentencing factors in some detail, and sentenced McClain to thirteen years imprisonment. At the

conclusion of the hearing, the district court asked whether there were any legal objections to the

sentence, and defense counsel responded that there were not.
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United States v. McClain
Page 4

       On April 11, 2008, McClain filed a motion for modification of sentence based on the

retroactive amendments to the crack Sentencing Guidelines. On April 16, the district court ordered

the motion held in abeyance due to McClain’s projected release date.

       McClain makes four arguments on appeal: (1) the district court committed plain error by

failing to respond to his mitigation argument; (2) the district court committed plain error by failing

to state his Guidelines range on the record; (3) the district court’s drug quantity determination was

clearly erroneous; and (4) we should remand this case to the district court to consider McClain’s

motion for reduction of sentence.

                                          II. ANALYSIS

A. Standard of Review

       Although McClain argues that this Court should not review allegations of procedural error

not preserved at sentencing for plain error, the en banc Court has held to the contrary. See United

States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). McClain concedes that we have no

authority to depart from this rule. See Salmi v. Sec’y of Health & Human Serv., 774 F.2d 685, 689

(6th Cir. 1985). Thus, we must apply the plain error standard of review to McClain’s claim of

procedural unreasonableness. Plain error requires a defendant to show “(1) error (2) that was

obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness,

integrity, or public reputation of the judicial proceedings.” Vonner, 516 F.3d at 386 (internal

quotation marks and citation omitted).

B. Mitigation Argument
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United States v. McClain
Page 5

       McClain argues that the district court failed to explain in sufficient detail why it rejected his

argument for a downward variance based on his cooperation with state authorities. A district court’s

failure to adequately explain its chosen sentence renders the sentence procedurally unreasonable.

United States v. Hall, 632 F.3d 331, 335 (6th Cir. 2011). “Although Congress requires a court to

give ‘the reasons’ for its sentence, 18 U.S.C. § 3553(c), it does not say that courts must give the

reasons for rejecting any and all arguments by the parties for alternative sentences.” Vonner, 516

F.3d at 387. Instead, “[r]eversible procedural error occurs if the sentencing judge fails 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.’” United

States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007) (quoting Rita v. United States, 551 U.S. 338, 356

(2007) (brackets in original)). Here, the district court stated that it had reviewed McClain’s

sentencing memorandum, which set forth his mitigation argument. In addition, the district court

discussed the section 3553(a) sentencing factors in some detail. Thus, we hold that any error in

failing to respond to McClain’s mitigation argument did not rise to the level of plain error.

C. Guidelines Range Calculation

       McClain argues that even if the district court correctly calculated his base offense level and

criminal history category, it erred by failing to state his Guidelines range on the record in terms of

months. A district court’s failure to calculate the Guidelines range or its improper calculation of the

range renders a sentence procedurally unreasonable. Hall, 632 F.3d at 335. A district court must

generally “acknowledge the defendant’s applicable Guideline range.” United States v. Blackie, 548

F.3d 395, 400 (6th Cir. 2008) (internal quotation marks and citation omitted). Thus, the district court
No. 07-1284
United States v. McClain
Page 6

arguably erred by failing to explicitly state the range on the record. However, McClain is unable to

demonstrate that this error affected his substantial rights and therefore cannot satisfy the

requirements under our plain error review. The district court correctly calculated his base offense

level and criminal history category and gave him a within-Guidelines sentence. Furthermore, the

district court adequately explained the sentence. Cf., e.g., United States v. Kingsley, 241 F.3d 828,

836 (6th Cir. 2001) (finding that a court’s failure to explain its reasoning for exacting a condition

of supervised release does not amount to plain error if the supporting reasons are evident on the

overall record). It appears from the overall record that the district court was aware of the correct

Guidelines range, and it provided enough information and reasoning to enable us to conduct

meaningful appellate review. Therefore, we hold that the district court’s failure to state the

Guidelines range on the record did not amount to plain error.

D. Drug Quantity Determination

       McClain argues that the district court’s drug quantity determination was clearly erroneous.

This Court reviews a district court’s factual calculation of the drug quantity attributable to a

defendant for clear error. United States v. Olsen, 537 F.3d 660, 663 (6th Cir. 2008). “[T]he district

court must set forth the evidence upon which it relies and make specific findings that are supported

by a preponderance of the evidence.” United States v. Long, 190 F.3d 471, 478 (6th Cir. 1999). If

the precise amount of drugs is uncertain, then “the district court may estimate the amount, but the

court must err on the side of caution.” United States v. Gardner, 417 F.3d 541, 546 (6th Cir. 2005)

(internal quotation marks and citation omitted).
No. 07-1284
United States v. McClain
Page 7

       McClain conceded in his sentencing memorandum that the statements of his coconspirators

support a base offense level of thirty-four. A defendant who expressly concedes that he should be

held accountable for a certain quantity of drugs is estopped from later challenging a court’s factual

finding on that issue. See United States v. Nesbitt, 90 F.3d 164, 168 (6th Cir. 1996) (“Because

defendant expressly agreed that he should be held accountable for 139 kilograms, he cannot now

challenge the court’s factual finding on this issue.”). Thus, we hold that the district court’s drug

quantity determination was not clearly erroneous.

E. Motion for Reduction of Sentence

       McClain asks us to remand the case to the district court for consideration of his motion for

a reduction of his sentence. However, this Court has taken this course of action only when the

defendant has not yet filed a motion. See United States v. Simmons, 587 F.3d 348, 366 (6th Cir.

2009) (remanding for consideration under section 3582(c) in the absence of a motion for reduction

of sentence); United States v. Poole, 538 F.3d 644, 645-46 (6th Cir. 2008) (remanding so that the

district court could consider an anticipated motion for reduction of sentence); United States v.

Ursery, 109 F.3d 1129, 1138 (6th Cir. 1997) (remanding to allow defendant to make a motion for

reduction of sentence). Furthermore, the Fourth Circuit has explained that:

       It is . . . for the district court to first assess whether and to what extent [defendant’s]
       sentence may be thereby affected, and that court is entitled to address this issue either
       sua sponte or in response to a motion by [defendant] or the Bureau of Prisons. See
       18 U.S.C. § 3582(c)(2). Accordingly, we need not remand for resentencing in order
       for [defendant] to pursue relief in the district court under Amendment 706, and we
       decline to do so. However, this decision is rendered without prejudice to
       [defendant’s] right to pursue such relief in the sentencing court.
No. 07-1284
United States v. McClain
Page 8

United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008). McClain has already pursued relief in

the district court, and declining to remand the case would not prejudice his right to any such relief.

Thus, we will simply allow McClain’s motion to be adjudicated in the normal course of the district

court’s proceedings.




                                        III. CONCLUSION

       The district court did not commit plain error by failing to respond to McClain’s mitigation

argument or by failing to state the Guidelines range on the record. In addition, the district court’s

drug determination was not clearly erroneous. Furthermore, we find it unnecessary to remand this

case to the district court to consider McClain’s motion for reduction of sentence. Thus, we

AFFIRM the decision of the district court.
