                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0968n.06

                                        No. 11-6108

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                           Aug 31, 2012
UNITED STATES of AMERICA,                     )
                                              )                      LEONARD GREEN, Clerk
          Plaintiff-Appellee,                 )
                                              )       ON APPEAL FROM THE
v.                                            )       UNITED STATES DISTRICT
                                              )       COURT FOR THE WESTERN
DALTON MORROW,                                )       DISTRICT OF KENTUCKY
                                              )
          Defendant-Appellant.                )
                                              )             OPINION
                                              )
______________________________




Before: MOORE, WHITE, and LUCERO,* Circuit Judges.

          CARLOS F. LUCERO, Circuit Judge. Dalton Morrow appeals following his guilty

plea to four counts of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B), and one count of possession with intent to distribute cocaine base in violation of

21 U.S.C. § 841(a)(1) and (b)(1)(C). Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.




      * The Honorable Carlos F. Lucero, Circuit Judge for the United States Court of
Appeals for the Tenth Circuit, sitting by designation.

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                                              I

       In 2008, Morrow sold crack cocaine to an informant for the Bureau of Alcohol,

Tobacco, Firearms, and Explosives on several occasions. A criminal complaint, a federal

arrest warrant, and a detainer issued on March 25, 2009, while Morrow was serving the

remainder of a state parole term at the Warren County Regional Jail. In November 2009,

after Morrow filed a pro se motion to dismiss for violation of the Speedy Trial Act, the

federal government filed a writ of habeas corpus ad prosequendum seeking custody of

Morrow. A grand jury indicted Morrow on four counts of distributing cocaine base and one

count of possession with intent to distribute cocaine base on December 9, 2009. He pled

guilty to all five counts subject to a written Fed. R. Crim. P. 11(c)(1)(B) agreement.

       Morrow’s Presentence Investigation Report recommended that the district court

sentence him as a career offender under U.S.S.G. § 4B1.1, because of Morrow’s prior drug

convictions in Kentucky state court. On January 13, 1999, a Kentucky jury convicted

Morrow for trafficking cocaine on August 29 and September 5, 1997. Morrow was

sentenced for these convictions on February 15, 1999. Subsequently, Morrow pled guilty to

three other counts of trafficking cocaine. These charges related to transactions that also

occurred in September 1997; on the 4th, 9th, and 15th, respectively. On July 8, 1999,

Morrow was sentenced in all three of these cases to five years’ imprisonment.

       Morrow objected to his classification as a career offender. Although conceding that

he “technically satisfies the elements of [U.S.S.G. §] 4A1.2(a)(2),” Morrow argued that the



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spirit of the provision was inapplicable because his prior offenses occurred over a brief

period. But the district court concluded that a variance was not warranted given Morrow’s

recidivism.

       Morrow also argued that the district court should correct for the disparity between

advisory sentencing ranges for crack and powder cocaine by using the powder cocaine

Guidelines. The district court acknowledged its discretion to vary from the cocaine base

Guidelines, but concluded that it would apply them in Morrow’s case. Rejecting both

arguments, the district court imposed a sentence of 151 months’ imprisonment, at the bottom

of Morrow’s Guidelines range.

                                              II

       Morrow contends that his sentence was both procedurally and substantively

unreasonable based on his career offender classification and the effect of the crack/powder

cocaine sentencing disparity. We consider both substantive and procedural reasonableness

claims “under the deferential abuse-of-discretion standard.” United States v. Battaglia, 624

F.3d 348, 350 (6th Cir. 2010). In doing so, we review the district court’s factual findings for

clear error and its legal conclusions de novo. Id.

       District courts commit procedural error by, for example, “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.” Gall v. United States, 552 U.S.



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38, 51 (2007). 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. Conatser, 514 F.3d 508, 520 (6th Cir. 2008).

                                              A

       A defendant convicted of a controlled substance felony should be sentenced as a

career offender if “the defendant has at least two prior felony convictions of either a crime

of violence or a controlled substance offense.” U.S.S.G. § 4B1.1. In determining whether

a defendant satisfies this test, related convictions may be counted as a single sentence under

certain circumstances:

       Prior sentences always are counted separately if the sentences were imposed
       for offenses that were separated by an intervening arrest (i.e., the defendant is
       arrested for the first offense prior to committing the second offense). If there
       is no intervening arrest, prior sentences are counted separately unless (A) the
       sentences resulted from offenses contained in the same charging instrument;
       or (B) the sentences were imposed on the same day.

U.S.S.G. § 4A1.2(a)(2).

       Under this rubric, Morrow has at least two prior felony convictions that qualify under

the career offender provision. Morrow’s three convictions for which he pled guilty are

merged because he was sentenced in all three cases on the same day: July 8, 1999. However,

Morrow was sentenced separately on February 15, 1999 for his jury conviction. And because

he was also charged separately in that case, it is counted separately from the remaining three

convictions under § 4A1.2(a)(2).

                                              -4-
                                              B

       Morrow argues that even if he qualifies as a career offender, his sentence is

nonetheless substantively unreasonable, given that his advisory Guidelines range would have

been significantly lower had he been charged by state authorities in a single indictment or if

he had been sentenced in all four cases simultaneously. The Guidelines’ irrationality, he

contends, is further exacerbated by the disparity between crack and powder cocaine

sentencing provisions.

       If the district court agreed with Morrow’s policy arguments, it was clearly permitted

to vary from the Guidelines. See Kimbrough v. United States, 552 U.S. 85, 101 (2007);

United States v. Michael, 576 F.3d 323, 327 (6th Cir. 2009). The court below recognized this

authority, but concluded that a within-Guidelines sentence was appropriate given the

overarching 18 U.S.C. § 3553(a) factors. See Gall, 552 U.S. at 49. The court then

considered whether a variance was warranted, but held that Morrow satisfied both the spirit

and the letter of the career offender provision because he had engaged in at least nine similar

crack transactions. Accordingly, it found, with express reference to § 3553(a), that a term

of 151 months was appropriate.

       Morrow has not shown that these determinations constitute an abuse of discretion.

Although he generally critiques the career offender Guideline and crack/powder cocaine

sentencing disparity, he offers little in the way of particularized facts showing that the

Guidelines calculation resulted in an unreasonably long sentence in his case. “[T]he fact that



                                              -5-
a district court may disagree with a Guideline for policy reasons and may reject the

Guidelines range because of that disagreement does not mean that the court must disagree

with that Guideline or that it must reject the Guidelines range if it disagrees.” United States

v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011). The district court correctly calculated

Morrow’s Guidelines range, carefully considered whether a variance was appropriate, and

explained its reasoning in imposing a within-Guidelines sentence. We see no abuse of

discretion in the district court’s sentencing determinations.

                                              III

       In addition to his sentencing challenge, Morrow raises several issues that are not

subject to review. First, Morrow argues that the district court erred by failing to dismiss the

charges against him based on alleged violations of the Speedy Trial Act, his Sixth

Amendment right to a speedy trial, and the Interstate Agreement on Detainers. But Morrow

expressly waived his right to a speedy trial in his plea agreement. “Generally, a voluntary

and unconditional guilty plea bars any subsequent non-jurisdictional attack on the

conviction.” United States v. Martin, 526 F.3d 926, 932 (6th Cir. 2008) (quotation omitted);

see also United States v. Bell, 350 F.3d 534, 535 (6th Cir. 2003) (“[A] defendant who

pleaded guilty may not appeal an adverse ruling on a pre-plea motion . . . unless he has

preserved the right to do so by entering a conditional plea of guilty in compliance with Rule

11(a)(2).” (quotation omitted)). Because Morrow does not claim his plea was involuntary,




                                              -6-
and because he did not preserve the issue by seeking a Fed. R. Crim. P. 11(a)(2) conditional

plea, he has waived these claims.

       Second, Morrow asserts that he should have been granted a downward departure

under U.S.S.G. § 5K1.1 for providing “substantial assistance in the investigation or

prosecution of another person who has committed an offense.” Under that provision, a

district court may depart from a defendant’s Guidelines range “[u]pon motion of the

government.” Id. As the Supreme court has explained, § 5K1.1 “gives the Government a

power, not a duty, to file a motion when a defendant has substantially assisted” absent “any

agreement on the Government’s behalf to file a substantial-assistance motion.” Wade v.

United States, 504 U.S. 181, 185 (1992). There was no such agreement here, and the

government elected not to move for a substantial assistance departure. Although some courts

“conduct a bad faith review of the government’s refusal to file a substantial assistance

motion, this Circuit has expressly ruled that [absent an agreement to the contrary] . . . we may

only review the government’s decision for unconstitutional motives.” United States v.

Moore, 225 F.3d 637, 641 (6th Cir. 2000) (citations omitted). Morrow concedes there were

no unconstitutional motives at issue here, and thus this claim must fail.

       Finally, Morrow personally submitted pro se correspondence seeking to raise issues

other than those briefed by his attorney. We generally do not consider arguments raised by

a pro se defendant when the defendant is represented by counsel. See United States v.

Williams, 641 F.3d 758, 770 (6th Cir. 2011). To the extent Morrow wishes to advance these



                                              -7-
claims, a habeas petition would provide the proper avenue. See United States v. Sammons,

918 F.2d 592, 601 (6th Cir. 1990).

                                          IV

      For the foregoing reasons, we AFFIRM.




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