                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0144n.06

                                          No. 16-1823                                FILED
                                                                               Mar 06, 2017
                                                                           DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )      ON APPEAL FROM THE
v.                                                      )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE WESTERN
KALILU MASTASA BLACKMAN,                                )      DISTRICT OF MICHIGAN
                                                        )
       Defendant-Appellant.                             )                  OPINION
                                                        )
                                                        )



       BEFORE:        CLAY, GIBBONS, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Defendant Kalilu Blackman appeals his sentence,

arguing that his designation as a career offender was substantively unreasonable in light of a

recent Report from the United States Sentencing Commission.          Because the district court

imposed a reasonable sentence, we AFFIRM.

                                     I. BACKGROUND

       Blackman pled guilty to one count of possessing with intent to distribute heroin and

cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and stipulated to the possession of a

firearm as a convicted felon. The Pre-Sentence Report determined that Blackman was a career

offender under USSG §4B1.1 based on his previous controlled substance convictions, resulting

in a guideline range of 188 to 235 months. Blackman requested a downward variance, arguing

that the guideline range resulted in a sentence that was “excessive and . . . ‘greater than
No. 16-1823,United States v. Blackman


necessary’ to serve the purposes of sentencing.” The district court rejected the request for a

downward variance and imposed a sentence of 188 months. Blackman filed a timely appeal.

                                           II. ANALYSIS

       We review a sentence for substantive reasonableness under the abuse of discretion

standard. See Gall v. United States, 552 U.S. 38, 46 (2007). Sentences within the applicable

Guidelines range are afforded a presumption of reasonableness.            United States v. Vowell,

516 F.3d 503, 509 (6th Cir. 2008). A sentence may be substantively unreasonable if the 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).

       Blackman argues that his sentence is substantively unreasonable because it is greater

than necessary to further statutory sentencing purposes. He bases this argument on a Report

from the U.S. Sentencing Commission, the independent agency in the judicial branch created

by Congress to    establish   sentencing    policies   and   practices   for   the   federal   courts.

The Commission recommends that Congress no longer include as career offenders those who

qualify “based solely on drug trafficking offenses.” U.S. Sentencing Comm’n, Report to the

Congress:        Career Offender Sentencing Enhancements (2016) at 3, available at

http://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/criminal-

history/201607_RtC-Career-Offenders.pdf#page=47. The Report is the result of a multi-year

study, conducted in the context of policy concerns regarding “overly severe penalties for certain

offenders” and “growing criticisms regarding the scope and impact of certain recidivist statutes

and guidelines provisions.” Id. at 7. It concludes that the “career offender directive is best

focused on those offenders who have committed at least one ‘crime of violence,’” and that



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reforms “would help ensure that federal sentences better account for the severity of the offenders’

prior records, protect the public, and avoid undue severity for certain less culpable offenders.” Id. at

3.

        The mission of the Sentencing Commission is to collect, analyze, and distribute

information on federal crime and sentencing to all branches of the federal government,

practitioners, academics, and the public. It is charged with establishing guidelines concerning

the appropriate form and severity of punishment for federal offenders. Though the Commission,

operating within its congressional mandate and its expertise, has issued its findings and

recommendations, Congress has not yet considered the Report. And while sentencing judges

may certainly consider arguments based on research compiled by the Commission pursuant to its

mission, the recommendations are not law at this point. Because the record demonstrates that

Blackman’s sentence was based on appropriate considerations and was otherwise within the

applicable guideline range, the district court did not abuse its discretion in sentencing him.

                                        III. CONCLUSION

        Accordingly, we AFFIRM Blackman’s sentence.




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