                                    File Name: 08a0663n.06
                                    Filed: November 3, 2008

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                          No. 07-5465

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                        ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT
JOHN S. BROWN,                                            COURT FOR THE WESTERN
                                                          DISTRICT OF KENTUCKY
          Defendant-Appellant.


                                                     /

Before:          MARTIN and GILMAN, Circuit Judges, and DOWD, District Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge. John S. Brown appeals his 144 month sentence

for possession of crack and powder cocaine with intent to distribute, possession of a firearm in

furtherance of a drug crime, and possession of a firearm after a felony conviction. On appeal, he

argues that his sentence should be vacated because it was imposed without a presentence report. We

find that the district court properly exercised its discretion to impose a sentence without a

presentence report under Federal Rule of Criminal Procedure 32(c)(1)(A)(ii) and United States

Sentencing Guidelines Manual § 6A1.1(a)(2). However, we VACATE Brown’s sentence and




          *
         The Honorable David D. Dowd, Jr., Senior District Judge for the Northern District of Ohio,
sitting by designation.
No. 07-5465
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Page 2

REMAND for resentencing in light of the 2007 Amendments to the Sentencing Guidelines, which

apply retroactively to Brown’s case.

                                                   I.

       On March 22, 2006, John S. Brown was arrested in Louisville, KY, on suspicion of drug

trafficking. Police found him carrying crack and powder cocaine, $918 in cash, and a loaded .380

handgun. Brown admitted that he intended to distribute the drugs and that he carried the gun for

protection. He was subsequently charged with possession of crack and powder cocaine with intent

to distribute, possession of a firearm in furtherance of a drug crime, and possession of a firearm after

a felony conviction. At the advice of counsel, Brown negotiated a plea agreement, pled guilty to all

counts and agreed to a recommended sentence of 144 months. After finding that it had all the facts

necessary for sentencing, the district court found this sentence to be reasonable and imposed the

recommended sentence. Brown now appeals.

                                                  II.

       We review sentencing determinations for both procedural and substantive reasonableness.

A sentence is 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.” Gall v. United States, 128 S. Ct. 586, 597 (2007). “[A] sentence may

be substantively unreasonable when the district court selects the sentence arbitrarily, bases the

sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or gives an
No. 07-5465
United States v. Brown
Page 3

unreasonable amount of weight to any pertinent factor.” United States v. Borho, 485 F.3d 904, 908

(6th Cir. 2007) (citation and quotation marks omitted). The standard of review for sentencing

determinations is abuse of discretion. Gall, 128 S.Ct. at 594.

                                                 III.

       Brown argues that the district court’s failure to consult a presentence report before sentencing

him was procedurally unreasonable. We disagree. Presentence reports, while often an important

resource, are not a mandatory part of the sentencing process. Both the Federal Rules of Criminal

Procedure and the Sentencing Guidelines expressly provide that a district judge may sentence a

defendant without a presentence report “[if] the court finds that the information in the record enables

it to meaningfully exercise its sentencing authority under 18 U.S.C. § 3553, and the court explains

its finding on the record.” Fed. R. Crim. Pro 32(c)(1)(A)(ii); U.S.S.G. § 6A1.1(a)(2). This makes

sense. The purpose of a presentence report is to inform the judge of the facts relevant to sentencing.

As Rule 32(c)(1)(A)(ii) and U.S.S.G. § 6A1.1(a)(2) recognize, where the judge already has those

facts in front of him, a presentence report is unnecessary. Cf. U.S.S.G. § 6A1.1 cmt. (“A thorough

presentence investigation ordinarily is essential in determining the facts relevant to sentencing. Rule

32(c)(1)(A) permits the judge to dispense with a presentence report . . . when the court finds

sufficient information in the record to enable it to exercise its statutory sentencing authority

meaningfully and explains its finding on the record.”) (emphasis added).

       Brown correctly notes that U.S.S.G. § 6A1.1(b) provides that a defendant may not waive

preparation of a presentence report. However, U.S.S.G. § 6A1.1(b) must be read in light of U.S.S.G.

§ 6A1.1(a), which empowers the judge to sentence a defendant without a presentence report. That
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Page 4

is to say, U.S.S.G. § 6A1.1(b) does not limit the judge’s authority to issue a sentence without a

presentence report if he complies with Rule 32(c)(1)(A)(ii) and U.S.S.G. § 6A1.1(a)(2).

        Here, Brown entered into a binding plea bargain with the United States pursuant to Rule

11(c)(1)(C) of the Federal Rules of Criminal Procedure. He agreed to the facts that were contained

therein and which were independently reviewed by the district court at his sentencing hearing.

Likewise, he agreed to a sentence of 144 months. Consistent with U.S.S.G. § 6B1.2(c), the district

court accepted the plea bargain upon finding that the agreed-upon sentence fell within the applicable

range.1 It then asked Mr. Brown whether he would like to be sentenced that day or delay sentencing

for “a couple of months” while a presentence report was prepared. In doing so the district court did

not in any way limit its authority to impose a sentence without a presentence report. When Brown

indicated he did not desire to wait, he signed a form memorializing this preference as an incident to

this exchange. The district court then found that the record enabled it to meaningfully exercise its

sentencing authority under 18 U.S.C. § 3553, and sentenced Brown to the agreed-upon sentence.

To the extent the district court treated Brown’s preference as controlling, it was within its discretion

to do so. This in no way violated the Sentencing Guidelines.




        1
         The record indicates that Brown’s criminal history was most likely V, but clearly not less
that IV. The plea bargain stipulated category V, and the district court followed this. However, to
the extent there is any uncertainty, it is worth noting that the sentence of 144 months falls within the
recommended range for both. The offense level for the drug charge was 23, with a five year
minimum. For a criminal history of IV, the Guidelines Manual range was 70-87 months. For a
criminal history of V, it would have been 84-105. The firearm count carried a 60 month minimum
to be served consecutive to the first, so a total of 144 months falls within either category.
No. 07-5465
United States v. Brown
Page 5

          Furthermore, it is clear from the record that the district court had sufficient information

before it to “exercise its sentencing authority meaningfully.” The district court had discussed

Brown’s criminal history with Brown’s counsel, as well as the structure of Brown’s plea agreement,

under which the United States agreed to drop the second drug charge against him if he pled guilty

to all counts and agreed to a 144 month sentence.2

          Having made the finding required by Rule 32(c)(1)(A)(ii), the district court went on to

explain it on the record at Brown’s sentencing hearing. This explanation was brief but sufficient in

the broader context of the hearing: no facts relevant to sentencing were in dispute and Brown’s

sentence had been negotiated to three years less than the mandatory minimum for the charges he

faced.3

          Sentencing Brown without a presentence report was procedurally reasonable under these

circumstances.

                                                   IV.

          While Brown’s sentence was procedurally reasonable, it was imposed pursuant to sentencing

guidelines that have since been amended retroactive to Brown’s case. Because of this, we vacate his

sentence and remand his case for resentencing.




          2
              This reduced the mandatory minimum of his sentences from fifteen years to ten.
          3
         Even if the district court had committed error here, that error would not be reversible under
Fed. R. Crim. Pro. 52, because Brown did not object to it at his sentencing hearing and there is no
evidence that it “affects substantial rights.” United States v. Ward, 190 F.3d 483, 492 (6th Cir. 1998).
No. 07-5465
United States v. Brown
Page 6

       Brown’s sentence was imposed on May 17, 2007. On November 1, 2007, the sentencing

guidelines were amended to decrease the offense level for drug convictions involving crack by two

points. In an apparent oversight, the drug equivalency table in the commentary to U.S.S.G. §2D1.1

did not incorporate this change. The guidelines were later amended to correct this anomaly and

make the resulting changes retroactive. See 73 Fed. Reg. 217-01 (Jan. 2, 2008); § 1B1.10(a)(1),(c)

(Supp. 2008). Because of this, defendants serving a sentence for a crack offense imposed under the

prior guidelines can file a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). See United

States v. Poole, 538 F.3d 644, 645 (6th Cir. 2008). Brown was sentenced under the prior guidelines,

so he is eligible for resentencing under the new provisions.

                                                V.

       For the foregoing reasons, we VACATE Brown’s sentence and REMAND for resentencing.
