                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0352n.06
                               Filed: May 18, 2007

                                                  No. 06-5425

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                         )
                                                                  )          ON APPEAL FROM THE
        Plaintiff-Appellee,                                       )          UNITED STATES DISTRICT
                                                                  )          COURT FOR THE EASTERN
v.                                                                )          DISTRICT OF KENTUCKY
                                                                  )
CARLOS DAMIAN,                                                    )
                                                                  )                               OPINION
        Defendant-Appellant.                                      )




BEFORE:          COLE and McKEAGUE, Circuit Judges; COHN, Judge.*

        PER CURIAM. Defendant-Appellant Carlos Damian appeals his sentence based on his

guilty plea to conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846. Damian

contends that his sentence violates United States v. Booker, 543 U.S. 220 (2005), which makes the

Federal Sentencing Guidelines advisory. Because the district court recognized the Guidelines’

advisory nature and properly considered other statutory sentencing factors, we AFFIRM.

        On November 10, 2005, Damian pleaded guilty to conspiring to distribute over 500 grams

of methamphetamine. He allegedly was not the mastermind of the operation, but transported the

drugs. At sentencing on March 16, 2006, the district court determined that the Guidelines sentencing

range was 168 to 210 months, based on an offense level of 33 and a criminal-history category of III.

        *
          The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by
designation.
No. 06-5425
United States v. Damian

        The court then considered the statutory requirements of 18 U.S.C. § 3553(a) before imposing

a sentence. With regard to Damian’s history and characteristics, see 18 U.S.C. § 3553(a)(1),

Damian’s attorney explained that Damian has a two-and-a-half-year-old child whom Damian is

raising alone (though Damian made arrangements for one of his sisters to raise the child should he

be imprisoned), and that Damian had maintained employment to provide for his child. With regard

to the seriousness of the offense, see id. § 3553(a)(1)(A), Damian’s attorney noted that Damian was

just a deliverer of the drugs; did not share in the profits of the operation (he received a set fee); and

did not have organizational control of the operation. The attorney then explained that these

circumstances warranted adherence to the advisory nature of the Guidelines under Booker. The

attorney further contended that Damian’s criminal-history category was overstated, noting that it was

based in part on four prior misdemeanors. Without those, the attorney explained, Damian’s criminal-

history category would be only I instead of III, leaving a Guidelines range of 135 to 168 months.

        The district court then sentenced Damian, “pursuant to the Sentencing Reform Act of 1984,

as amended or modified by the United States Supreme Court in its 2005 Booker and Fanfan

decisions,” to 160 months in prison—eight months below the bottom of the advisory range. (Joint

Appendix 102.) The court explained that although Damian’s “criminal history is significant,” this

eight-month downward variance under § 3553(a) was reasonable “given the nature of some of the

offenses.” (Id.)

        Damian argues on appeal that his sentence violates his Sixth Amendment rights in light of

Booker because “there is a strong inference that the district court would have imposed [a] lesser

sentence under non-mandatory guidelines.” This strong inference arises, he says, because of the

                                                  -2-
No. 06-5425
United States v. Damian

arguments he raised in the district court regarding his young child and his four misdemeanors. But

the district court recognized the advisory nature of the Guidelines and considered these factors when

imposing Damian’s sentence. Indeed, it imposed a sentence below the advisory range. Damian

essentially pretends the district court’s decision was pre-Booker and therefore contends on appeal

that the district court should do again—consider these factors under the advisory Guidelines when

sentencing him—what the district court already did. He does not otherwise argue that his sentence

is procedurally or substantively unreasonable. His appeal is therefore without merit, and his sentence

is AFFIRMED.




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