                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0882n.06
                           Filed: December 7, 2006

                                           No. 05-4603

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Appellee,                                 )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
GREGORY GALLATIN,                                )    SOUTHERN DISTRICT OF OHIO
                                                 )
       Appellant.                                )



       Before: SUTTON and GRIFFIN, Circuit Judges; and COHN, District Judge.*


       SUTTON, Circuit Judge. Gregory Gallatin pleaded guilty to two marijuana-distribution

charges, after which the court imposed a 110-month sentence. In the aftermath of United States v.

Booker, 543 U.S. 220 (2005), Gallatin received a second sentencing hearing. At this hearing, the

district court properly acknowledged the advisory nature of the guidelines, correctly calculated

Gallatin’s guidelines range, adequately considered the § 3553(a) factors and imposed the same

sentence. Because this second sentence is both procedurally and substantively reasonable, we affirm.




       *
        The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 05-4603
U.S. v. Gallatin

                                                 I.


       On December 1, 2000, DEA agents arrested Kevin Mueller and seized 55 pounds of

marijuana from him. Soon after the arrest, Mueller cooperated with the agents and told them that

Gallatin was his marijuana source.


       Relying on Mueller’s tip, the agents obtained a search warrant for Gallatin’s residence.

During the search of Gallatin’s home, the agents seized 110 pounds of marijuana, a number of scales,

a loaded handgun and other items that are frequently utilized in drug trafficking.


       In August 2001, Gallatin pleaded guilty to one count of conspiracy to distribute marijuana,

see 21 U.S.C. § 846, and one count of possession of marijuana with intent to distribute, see id.

§ 841(a)(1). On July 29, 2002, the district court sentenced Gallatin to a 110-month prison term. A

panel of this court affirmed his sentence. United States v. Gallatin, 88 F. App’x 54 (6th Cir. Feb.

12, 2004).


       The Supreme Court granted Gallatin’s certiorari petition, vacated the judgment and remanded

the case for reconsideration in light of Booker. Gallatin v. United States, 543 U.S. 1110 (2005). The

district court imposed a 110-month prison sentence on remand.


                                                 II.


       Under Booker, we review sentences for procedural and substantive reasonableness. So long

as the trial court appreciates the advisory nature of the guidelines, calculates the guidelines’

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U.S. v. Gallatin

recommendation correctly and considers the § 3553(a) factors in exercising its independent judgment

about what sentence to impose, it satisfies the procedural requirements of review. United States v.

McBride, 434 F.3d 470, 476 (6th Cir. 2006). If the court then imposes a substantively reasonable

sentence, United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), we will uphold it.


        The district court satisfied these modest requirements. First, it correctly applied the

guidelines in determining a sentencing range of 110 to 137 months.


        Second, it adequately considered the § 3553(a) factors. Addressing the “history and

characteristics of the defendant,” see 18 U.S.C. § 3553(a)(1), it noted that Gallatin had “a lengthy

criminal history record,” JA 333. Discussing the “need for the sentence . . . to reflect the seriousness

of the offense,” see § 3553(a)(2)(A), it observed that Gallatin’s crime involved “a lot, a very lot of

marijuana,” JA 333, that such an amount was for a “dealer,” id., that he was “storing all of this

marijuana at [his] house with [his] children in the house,” JA 344, and that “marijuana is very

destructive,” JA 345. Reflecting on the “need for the sentence . . . to afford adequate deterrence to

criminal conduct,” see § 3553(a)(2)(B), and “to protect the public from further crimes of the

defendant,” see § 3553(a)(2)(C), it noted that the sentence would “adequately deter future criminal

conduct” by the defendant, JA 345. Considering the guidelines’ goal of sentencing uniformity, see

§ 3553(a)(6), it observed that a guidelines sentence has the virtue of “treat[ing] everybody about the

same unless there’s some . . . reason to deviate either under the rules or under 3553(a),” JA 344.

Factoring rehabilitation into the equation, see § 3553(a)(2)(D), it ensured that the circumstances of

his remaining confinement would further that goal, see JA 346–48. In the end, while the district

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U.S. v. Gallatin

court did not mention every § 3553(a) factor by name, it provided “sufficient evidence in the record

to affirmatively demonstrate the court’s consideration” of the § 3553(a) factors, McBride, 434 F.3d

at 475 n.3, which is all that we require because “the ritual incantation of the factors” has never been

demanded “to affirm a sentence,” United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005)

(internal quotation marks omitted).


       Third, the district court understood the advisory nature of the guidelines. See JA 344 (“We’re

no longer bound to follow the guidelines. They’re only advisory. They’re not mandatory.”).


       Having satisfied these procedural requirements, the district court opted to give a within-

guidelines sentence. The resulting 110-month sentence—well below the statutory maximum of 20

years—represented the low end of the guidelines range. And “there is nothing in the record which

suggests that the district court’s sentencing determination was unreasonable.” Webb, 403 F.3d at

384. On this record, the district court imposed a procedurally and substantively reasonable sentence.


       Attempting to alter this conclusion, Gallatin argues that the district court: (1) “violated [his]

Sixth Amendment rights by imposing a sentence that was based on facts that were not established . . .

when it found that [he] was responsible for 609 pounds of marijuana”; (2) “violated [his] Sixth

Amendment rights by imposing a sentence that was based on facts that were not established . . .

when it found [him] to be a supervisor in the conspiracy”; (3) “erred by not reducing [his] base

offense level by 2 points for being a ‘minor participant’”; (4) “erred by placing [him] in a criminal

history category of VI, when [that] calculation unnecessarily overstated his criminal history”; and


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U.S. v. Gallatin

(5) “erred by not reducing [his] sentence due to post-conviction rehabilitation.” Br. at 2–3. We

disagree.


       Neither the district court’s 609-pounds-of-marijuana finding nor its finding that Gallatin

played a supervisory role in the conspiracy implicates Gallatin’s Sixth Amendment rights. Once

courts treat the guidelines “as advisory provisions,” the use of “the [g]uidelines as currently written”

does “not implicate the Sixth Amendment.” Booker, 543 U.S. at 233. A prior panel of this court,

it bears adding, rejected Gallatin’s challenges to the evidentiary support for these findings. See

Gallatin, 88 F. App’x at 60 (observing that because Gallatin “admitted during his original plea

colloquy that he transported 150–400 pounds of marijuana on at least three separate occasions” it

was “proper” to sentence him for over 600 pounds of marijuana); id. at 61 (observing that “Gallatin

admitted, under oath, that he ‘caused others to travel’ to obtain the supply of marijuana” and

concluding that the district court’s decision to apply the supervisor enhancement was “appropriate”).


       In view of this court’s prior decision that Gallatin’s conduct warranted a supervisor

enhancement, a decision he does not (and cannot) challenge here, Gallatin cannot tenably argue that

the district court erred in denying his request to lower his base offense level by two points for being

a “minor participant.”


       Gallatin also does not develop any traction in arguing that his properly calculated criminal-

history category “overstated his criminal history” and that he thus should have been given a

downward departure. Br. at 2, 24. So long as the district court recognizes its discretion to depart


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downward (nothing in the record suggests that the court did not recognize this discretion), we may

not review its decision. See United States v. Puckett, 422 F.3d 340, 344 (6th Cir. 2005) (holding that

we will not review such a decision “unless the record reflects that the district court was not aware

of or did not understand its discretion”) (internal quotation marks omitted).


       Nor has Gallatin shown that the district court abused its discretion by declining to depart

downward on account of his “post-conviction rehabilitation.” Br. at 25. Here, too, nothing in the

record indicates that the district court did not appreciate its discretion to depart downward, and

accordingly we have no authority to review this aspect of the court’s decision.


                                                 III.


       For these reasons, we affirm.




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