                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 10a0004n.06

                                             No. 08-6129
                                                                                           FILED
                             UNITED STATES COURT OF APPEALS                            Jan 05, 2010
                                  FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
v.                                                        )        DISTRICT OF TENNESSEE
                                                          )
DORRYL GREER a/k/a Doyle Greer,                           )                           OPINION
                                                          )
       Defendant-Appellant.                               )




BEFORE:          SUHRHEINRICH, McKEAGUE, and KETHLEDGE, Circuit Judges.


         McKeague, Circuit Judge. In this sentencing case, Dorryl Greer appeals his sentence as

being procedurally unreasonable due to the district court’s failure to adequately explain its reasons for

rejecting his request for a downward variance, as required by the Sentencing Guidelines. Finding no

plain error in the sentence imposed, we AFFIRM.

                                                   I.

         Defendant Greer was the passenger in a vehicle that officers stopped after they observed

suspected drug activity and noticed that neither of the vehicle’s occupants were wearing seatbelts. As

part of the stop, officers asked Greer to keep his hands on the dashboard while they apprehended the

driver. The officers initially became concerned about Greer after he moved his hands off the dashboard

and towards his lap multiple times during the stop. After they detained the car’s driver, the officers
 No. 08-6129
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attempted to remove Greer from the vehicle through the passenger door, but they were unable to open

this door. Instead, Greer exited through the driver’s side door, and a struggle ensued between Greer

and the officers. One of the officers noticed a gun in Greer’s waistband and yelled “Gun!” to alert the

other officer. Both Greer and the officer reached for the gun at the same time, and the struggle

continued for the weapon. According to Greer’s testimony, he reached for the gun out of fear and the

desire throw it from his person. Additional officers soon arrived on the scene, and Greer was

eventually subdued with the aid of pepper spray.

        Greer pled guilty to one count of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g). The Pre-Sentence Investigation Report recommended a prison sentence of 84 to 105

months, based on a total offense level of 25 and a criminal history category of IV. Prior to imposing

the sentence, the district court conducted a sentencing hearing held on two separate days, at which time

the arresting officers and Greer testified. In addition, a firearms expert gave information on the type

of firearm and magazine found in Greer’s possession, which were capable of shooting large amounts

of rounds in a short period of time. Before testimony was heard, Greer’s attorney gave the district court

numerous letters written on Greer’s behalf, which detailed Greer’s good behavior during his

incarceration and his participation in educational opportunities. In response to the letters, the district

court acknowledged that Greer had “a good experience” and “accomplishments” while awaiting

sentencing. The court also noted that Greer had experienced a “big change” “real quickly.” During

the hearing, one of the officers testified that Greer had provided authorities with information regarding

auto theft and drug trafficking, activities in which members of his family had engaged. In addition,

Greer testified that he did not intend to hurt anyone when he reached for the gun. He also testified that

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he carried the gun out of fear for his safety because he had been the victim of a recent robbery in which

the assailant had fired shots at him. He further testified that he attended church, wrote gospel music,

and worked two jobs. During Greer’s testimony, his attorney again mentioned the letters detailing

Greer’s good work and changed behavior and showed them to the court.                     The court again

acknowledged the letters and noted that Greer’s time had been “well spent.” Greer made a final plea

to the court for leniency given that he provided care and financial assistance to his ailing mother.

Greer’s family apparently was not present in the court while this testimony was heard. Instead, his

attorney requested that the family be let into the courtroom at the close of testimony.

         Prior to the court imposing the sentence, Greer’s attorney requested a downward variance from

the Guidelines and suggested a sentence of 70 months. To support the variance request, Greer’s

attorney listed the following factors: the recent robbery that caused Greer to fear for his safety and carry

the gun; the two level enhancement used to calculate the sentence range due to the type of weapon and

magazine; the fact that Greer did not intend to hurt the officers; the progress that Greer had made since

his previous incarceration; and the other factor that his attorney “talked about . . . prior to the family

. . . coming in.” (Sentencing Hearing Tr. 79–80, Sept. 18, 2009.) As to this last factor, the district

court replied, “Well, I understand.”

         In an oral decision encompassing nearly ten transcript pages, the district court acknowledged

Greer’s request for a variance and also noted the objectives of “18 USC Section 3553.” (Sentencing

Hr’g Tr. 86, Sept. 18, 2009.) The court listed the following factors weighing in favor of the 84-month

sentence that it imposed: the seriousness of possessing a firearm and magazine capable of firing a large

number of rounds; Greer’s lengthy criminal history which included a prior weapons violation; the

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importance of protecting the public; the deterrent effect of sentencing; and the seriousness of the

altercation with the police officers. The district court also acknowledged that Greer had made progress

in his life and worked two jobs. Finally, the district court noted that this type of behavior would

normally be sentenced at the higher end of the Guidelines range due to the seriousness of Greer’s

actions, but that Greer was receiving a sentence at the low end of the range due to his efforts to change

his life and due to the factor “[his] counsel alluded to.” (Sentencing Hr’g Tr. 89, Sept. 18, 2009.) At

the end of the hearing the district court asked, “Any objection from either side?” Greer’s attorney

responded, “No, Your Honor.” Greer now appeals his sentence, claiming that it is procedurally

unreasonable because the district court failed to address all of his arguments in favor of a downward

variance and failed to adequately explain its reasons for imposing the sentence.

                                                   II.

        We review the reasonableness of a sentence for an abuse of discretion. United States v.

Lapsins, 570 F.3d 758, 772 (6th Cir. 2009). This review has both a procedural and substantive

component. Id. In this case, Greer alleges procedural unreasonableness only. “A sentence may be held

procedurally unreasonable if it is marked by ‘significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 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.’” United States v. Houston, 529 F.3d 743, 753 (6th Cir. 2008) (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)).



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         If the district court properly asks for objections after imposing the sentence and the defendant

fails to object, then we review the sentence for plain error. United States v. Vonner, 516 F.3d 382, 385

(6th Cir. 2008) (en banc). Under the plain error standard, a defendant must 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.” Id. at 386 (internal quotations omitted).

In this case, the district court asked whether Greer had any objections after sentencing, and Greer’s

counsel replied “No.” Thus, we review Greer’s sentence for plain error. See id.

         Under the Sentencing Guidelines, a district court must state the reasons for the imposition of

a particular sentence. 18 U.S.C. § 3553(c); United States v. Grams, 566 F.3d 683, 686 (6th Cir. 2009)

(per curiam). While the district court is not required to discuss each statutory factor in imposing a

sentence, it must provide an explanation that indicates an individualized assessment of the facts and

allows for reasonable appellate review. United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009).

The record must indicate that the district court was fully aware of and considered all of the defendant’s

arguments. Id.

         In this case, Greer does not contend that the district court failed to consider the Guidelines

range or the relevant § 3553(a) factors. Rather, he argues procedural unreasonableness solely on the

basis of the district court’s failure to address some of his arguments in favor of a downward variance.

Greer specifically argues that the district court failed to address and explicitly reject his argument that

he (1) had cooperated with authorities, (2) needed to care for his ailing mother, and (3) was the victim

of a prior armed robbery. Our recent decision in United States v. Simmons, 587 F.3d 348 (6th Cir.

2009), provides guidance in this case. In that case, the defendant requested a downward variance due

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to the disparate treatment under the Guidelines between crack cocaine and powder cocaine. Id. at 360.

The district court did not explicitly respond to this argument in sentencing. Id. The Simmons court

noted that generally the district court must address arguments that are clearly presented during

sentencing. Id. at 361. However, this requirement is circumscribed when the court evaluates legal

arguments, rather than factual disputes. Id. at 362. Further, “[w]here a party makes a conceptually

straightforward legal argument for a lower sentence under one of the § 3553(a) factors, the district

court’s decision not to address the party’s argument expressly is not an error when the court otherwise

discussed the specific factor and appears to have considered and implicitly rejected the argument.” Id.

Based on this analysis, the Simmons court determined that the district court did not commit plain error

by failing to respond to the defendant’s argument regarding the sentencing disparity between crack

cocaine and powder cocaine. Id. at 363.

         In evaluating Greer’s claims under the guidance of Simmons, it is clear that the district court’s

failure to specifically respond to each of Greer’s arguments does not amount to plain error. Under his

first argument, Greer claims that the district court erred in failing to respond to his argument that he

provided authorities with information regarding his family’s criminal behavior. In requesting a

downward variance, Greer’s attorney referenced Greer’s assistance by noting the other factor “talked

about . . . prior to the family . . . coming in.” (Sentencing Hr’g Tr. 79–80, Sept. 18, 2009.) The district

court specifically addressed this argument by telling Greer that his sentence was at the low end of the

Guidelines range in part due to the factor that “your counsel alluded to earlier.” (Sentencing Hr’g Tr.

89, Sept. 18, 2009.) It is clear from the sentencing transcript that Greer’s attorney did not want to

specifically mention the information Greer provided about his family’s criminal activity while his

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family was in the courtroom. Thus, both Greer’s attorney and the district court alluded to this factor

without discussing it in specific detail. This was not plain error on the part of the district court.

         Under his second argument, Greer claims that the district court failed to respond to his

argument that he provided support to his ailing mother. Greer’s attorney did not specifically ask for

a downward variance due to Greer’s assistance to his sick mother. Rather, this information was

presented more generally in the form of a letter from Greer’s mother and the testimony of Greer

himself. The district court twice acknowledged the letters submitted on Greer’s behalf. Further, after

Greer himself pleaded for leniency in part due to his ailing mother, the district court responded, “I

understand, I understand.” (Sentencing Hr’g Tr. 53–54, Sept. 18, 2009.) Finally, it is not plain error

when the district court fails to address a conceptually straightforward argument so long as the record

is clear that the district court considered the argument and implicitly rejected it. Simmons, 587 F.3d

at 362. Given that the district court acknowledged Greer’s argument regarding his mother on three

separate occasions, it is clear from hearing transcript that the court considered Greer’s argument and

implicitly rejected it.

         Under his third argument, Greer claims that the district court failed to respond to his argument

that he was carrying the gun because he had been the victim of a recent armed robbery. While the

district court did not specifically discuss the armed robbery when imposing the sentence, at an earlier

point in the hearing the court did mention the “incident in 2007” and noted that it was a “bad scene”

and that Greer had reported it to the police. (Sentencing Hr’g Tr. Sept. 18, 2008 73–74.) These

references make clear that the district court considered this argument, as required by our precedent.

See Gapinski, 561 F.3d at 474.

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         As a final matter, Greer urges that this court’s decision in United States v. Buffington, 310 F.

App’x 757 (6th Cir. 2009), governs the outcome in his case because in that case the sentence was held

to be procedurally unreasonable after the district court failed to respond to three of the defendant’s

arguments for a downward variance. To begin with, we look to unpublished decisions for their

persuasive value only. Longaberger Co. v. Kolt, 586 F.3d 459, 468 (6th Cir. 2009). Given the

abundance of published authority on this issue, Buffington’s persuasive value is diminished. Further,

Buffington is distinguishable from the case at bar and therefore does not dictate the outcome of this

case. First, it is unclear from reading Buffington whether the plain error standard of review applied.

See 310 F. App’x at 762 (explaining that the court reviews a sentence for “reasonableness”). Given

Greer’s failure to object to the sentence after prompted by the district court, his case clearly falls under

the plain error standard of review. See Vonner, 516 F.3d at 385. Second, it is equally unclear from

reading Buffington whether the arguments were presented to the district court in the same manner that

the arguments were presented in this case. As explained above, Greer did not specifically raise all of

his arguments in the context of asking for a downward variance. And the district court responded to

the arguments in the same manner that Greer’s attorney argued them. Thus, it is clear from the

sentencing transcript in this case that the district court “considered and implicitly rejected” all of

Greer’s arguments for a downward variance. Simmons, 587 F.3d at 362.

                                                    III.

         For the foregoing reasons, we AFFIRM the sentence imposed by the district court.




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