                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0154n.06
                                                                                             FILED
                                       Nos. 09-2372/10-1768
                                                                                        Feb 08, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                   ON APPEAL FROM THE
                                       )                   UNITED STATES DISTRICT
v.                                     )                   COURT FOR THE EASTERN
                                       )                   DISTRICT OF MICHIGAN
WARNER CRIDER,                         )
                                       )
      Defendant-Appellant,             )                           OPINION
                                       )
_______________________________________)

       Before: CLAY and STRANCH, Circuit Judges; BARRETT, District Judge.*

       Michael R. Barrett, District Judge. Defendant Warner Crider appeals the sentence

imposed on remand after we reversed the sentence originally imposed. For the reasons set forth

below, we AFFIRM.

                                        I. BACKGROUND

       A jury found Crider guilty of conspiracy to possess with intent to distribute and to distribute

fifty grams or more of cocaine base, aiding and abetting the distribution of five grams or more of

cocaine base, aiding and abetting the possession with intent to distribute and to distribute controlled

substances, and felon in possession of ammunition. The government pursued a statutory sentencing

enhancement under 21 U.S.C. §§ 841(b) & 851(a) because Crider had been previously convicted of

a felony drug offense. At the original sentencing, the district court found that Crider was responsible

       *
        The Honorable Michael R. Barrett, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 09-2372/10-1768
United States v. Warner Crider

for 1.5 kilograms of cocaine base, also referred to as “crack cocaine.” Under §§ 841(b) and 851(a),

this quantity of crack cocaine required a statutory sentence of twenty years to life on the two most

serious offenses of conviction. Also, under the 2003 version of the mandatory sentencing guidelines,

this drug quantity resulted in a base offense level of 38 under USSG § 2D1.1(c)(1). The court

imposed additional guideline sentencing enhancements of eight levels to reach a total adjusted

offense level of 46; however, the maximum offense level permissible under the guidelines was 43.

With an offense level of 43 and a criminal history category of V, Crider faced a guideline sentence

of life imprisonment. The court imposed life terms on counts one and three, 60 months on count six,

and 120 months on count seven, all sentences to run concurrently.

        During the pendency of Crider’s direct appeal, the Supreme Court issued United States v.

Booker, 543 U.S. 220 (2005). We affirmed Crider’s convictions, but we reversed the sentence and

remanded for “reconsideration of the sentence pursuant to Booker” because we observed that “the

record is not clear as to how the district court would have ruled were the Guidelines merely advisory

. . . .” United States v. Crider, 144 F. App’x 531, 536 (6th Cir. 2005) (“Crider I”). We also stated,

however, that we found “no error in the calculation of the offense level or criminal history . . . .” Id.

        Between the date of our remand in August 2005 and the resentencing in October 2009, the

Sentencing Commission amended the drug guideline to lower the base offense level for crack

cocaine offenses by two levels. After the amendment, a drug quantity of 1.5 to 4.5 kilograms of

crack cocaine corresponded to a base offense level of 36, not 38. USSG § 2D1.1(c) (Nov. 2008).

        Prior to the resentencing, the parties filed new sentencing memoranda and the probation

officer provided the district court with a presentence report under USSG § 1B1.10 showing that the

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United States v. Warner Crider

crack-cocaine guideline amendment had no effect on Crider’s advisory guideline sentencing range.

Even starting with the new base offense level of 36, Crider’s total adjusted offense level remained

at 43, with a criminal history category of V, resulting in an advisory guideline sentence of life

imprisonment on the most serious counts.

       At the resentencing hearing, the district court had before it counsel’s sentencing memoranda

and oral arguments, the two presentence reports, Crider’s pro se briefs, and Crider’s allocution.

Crider argued that the court should conduct a de novo sentencing hearing and recalculate his offense

level and criminal history score. He asked the court to find him responsible for a drug quantity of

100 to 200 grams, rather than 1.5 kilograms, and to apply the guideline for cocaine powder instead

of crack cocaine. He also argued that a state felonious-assault conviction should not be counted in

his criminal-history score because that conviction was relevant conduct to the drug offenses then

before the court and including that crime in the criminal-history score would be double-counting.

The government opposed Crider’s requests, but asked the court to find that Crider was responsible

for 4.5 kilograms of crack cocaine rather than 1.5 kilograms, as found at the original sentencing.

       Noting that this Court on appeal had found no error in the calculation of the offense level or

the criminal-history category, the district court rejected the parties’ invitations to revise the drug

quantity attributable to Crider from the 1.5 kilograms of crack cocaine found at the original

sentencing. The court also refused to change the criminal-history score to remove the points

awarded for the state felonious-assault conviction. With regard to the disparity in sentencing

between crack cocaine and cocaine powder, the court stated:



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United States v. Warner Crider

               I recognize the court has given me the authority in terms of powder and crack,
       and I generally agree that disparity is bad policy. There is no basis in the reality of
       the difference between powder and crack. Powder is a longer high, as I understand
       it. The crack is a higher high, but for a shorter period, whatever. That’s for the
       chemists to work out.
               They are both bad drugs. There’s nothing good about powder and there’s
       nothing good about crack.

R. 239, Sent. Tr. at 48. Noting that the guideline range was advisory, the court applied the

sentencing factors set forth in 18 U.S.C. § 3553(a), and sentenced Crider to concurrent terms of life

imprisonment on counts one and three, and 60 months and 120 months on counts six and seven,

respectively.

       Crider filed a notice of appeal shortly after the resentencing hearing. The court did not enter

the Judgment and Commitment Order until June 2010. Shortly thereafter, Crider filed a second

notice of appeal from the judgment, and we consolidated the two appeals.1

                                         II. ANALYSIS

A.     Standards of Review

       We review challenges to the sentencing decisions of the lower courts under a deferential

abuse-of-discretion standard for reasonableness. United States v. Bolds, 511 F.3d 568, 578 (6th Cir.

2007). We first ensure that the district court did not commit a significant procedural error, such as

failing to calculate (or improperly calculating) the guideline range, treating the guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous


       1
        Although the district court also entered an order denying Crider a sentence reduction under
18 U.S.C. § 3582(c)(2), we are not certain that Crider made a motion under § 3582(c)(2). In any
event, the two pertinent notices of appeal Crider filed related to the sentence imposed at the
resentencing hearing and the entry of final judgment following the resentencing.

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United States v. Warner Crider

facts, or failing to explain the chosen sentence adequately. United States v. Penson, 526 F.3d 331,

336 (6th Cir. 2008). If a sentencing judge asks the parties whether there are any objections not

previously raised, in compliance with United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), and if

a party does not object, then plain-error review applies on appeal to those procedural-reasonableness

arguments that were not preserved below. United States v. Freeman, 640 F.3d 180, 186 (6th Cir.

2011). In the event we find a sentence is procedurally sound, we then consider the substantive

reasonableness of the sentence imposed, also under an abuse-of-discretion standard. United States

v. Lalonde, 509 F.3d 750, 770 (6th Cir. 2007).

B.     Procedural Reasonableness

       Crider challenges several aspects of the resentencing in this case. Through counsel, Crider

contends that the district court failed to realize our remand was a general one, that the court erred

in determining drug quantity, that the court should have sentenced for powder, not crack, cocaine,

and that the court should have removed the state felonious-assault conviction from the criminal-

history score. Crider also argues pro se that the district court denied him due process by filing the

final judgment eight months after the resentencing hearing, that the court violated his Sixth

Amendment rights by having him proceed in part pro se, and that the court erred by not holding a

hearing on the question of whether his state conviction could be used to enhance his sentence. We

decline to apply plain-error review to any of these arguments because the district court did not ask

the Bostic question at the close of the resentencing hearing. Consequently, we review for an abuse

of discretion.



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United States v. Warner Crider

       1.      The Scope of the Remand

       Whether a remand is general or limited is a legal question we review de novo. United States

v. Moore, 131 F.3d 595, 598 (6th Cir. 1997). “Remands for consideration in light of Booker are for

the purpose of allowing the sentencing court to determine if it would have granted a different

sentence, had it known at the time of sentencing that the Sentencing Guidelines were advisory, not

mandatory.” United States v. Haynes, 468 F.3d 422, 425 (6th Cir. 2006). Our cases discussing

whether a Booker remand is general or limited “have not come to a single conclusion. Instead, they

have varied based on the language used and the scope of the action taken by the district court on

resentencing.” United States v. Stout, 599 F.3d 549, 555 (6th Cir. 2010).

       In Crider I, our Court expressly stated that “we find no error in the calculation of the offense

level or criminal history, but the matter is remanded for reconsideration of the sentence pursuant to

Booker.” Crider, 144 F. App’x at 536. While this language may not have been “unmistakable” and

may have left some room for doubt as to the scope of the remand, see United States v. Obi, 542 F.3d

148, 154 (6th Cir. 2008), we conclude the district court did not err even if it considered the remand

to be a limited one based on this Court’s statement that there was no error in the original calculation

of the offense level or the criminal-history score. The district court recognized the advisory nature

of the sentencing guidelines after Booker, applied the intervening guideline amendment reducing

offense levels for crack-cocaine offenses, applied the § 3553(a) factors, and determined that a life

sentence was still appropriate on the most serious convictions.

       If the district court construed our remand as general in nature, there is still no error apparent

on the record because the district court allowed the parties to revisit sentencing issues that were

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United States v. Warner Crider

preserved earlier in the case. See United States v. Franco, 318 F. App’x 411, 414 (6th Cir. 2009).

The court permitted both parties to argue for a different drug-quantity determination, the court heard

Crider’s argument about sentencing disparity between crack and powder cocaine, and the court

entertained Crider’s contention that his criminal-history score should be recalculated without the

felonious-assault conviction. The court gave adequate reasons for rejecting each of these arguments.

Moreover, the court was not required to consider issues that had not been raised previously. See id.

When Crider raised a challenge to the § 851 enhancement, the Court responded, “You’ve had years

to provide evidence to this Court of any of the prior convictions not being valid,” and, “it’s in the

[presentence] report and it wasn’t challenged at the time of your sentencing.” R. 239, Sent. Tr. at

14, 15.

          Whether the district court viewed the remand as general or limited, we can discern no error

requiring reversal. Therefore, Crider’s arguments on this point are without merit.

          2.     The Determination of the Drug Quantity

          “[D]istrict courts may, consistent with the Sixth Amendment, find sentencing facts in

applying the now-advisory sentencing guidelines . . . .” United States v. Vonner, 516 F.3d 382, 384

(6th Cir. 2008) (en banc). We ordinarily review a district court’s factual finding on drug quantity

for clear error. United States v. Warman, 578 F.3d 320, 350 (6th Cir. 2009). “A factual finding is

clearly erroneous where, although there is evidence to support that finding, the reviewing court on

the entire evidence is left with the definite and firm conviction that a mistake has been committed.”

United States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002) (internal quotation marks omitted).



                                                   7
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United States v. Warner Crider

       Crider argued that the court should set his base offense level at 18 for 100 to 200 grams of

cocaine, while the government asked the court to find the drug quantity was 4.5 kilograms of crack

cocaine. Because the jury found that Crider was responsible for 50 grams or more of crack cocaine,

the court found that it was bound to at least that amount and would not adopt the drug quantity

proffered by Crider. The court also determined, however, that there was insufficient evidence to

support the government’s request for an increase to 4.5 kilograms. Accordingly, the court retained

the drug quantity it found at the original sentencing: 1.5 kilograms of crack cocaine. The court did

not clearly err in determining the amount of cocaine base attributable to Crider for the purposes of

sentencing.

       3.      The Cocaine Base to Cocaine Powder Ratio

       District courts have the discretion to reject and vary categorically from the crack-cocaine

guidelines based on a policy disagreement with those guidelines. Spears v. United States, 555 U.S.

261, 264 (2009). While a sentencing court may vary from the crack-cocaine-to-cocaine-powder

ratio, applying the ratio does not make a sentence unreasonable under existing law. United States

v. Simmons, 587 F.3d 348, 366 (6th Cir. 2009); United States v. Caver, 470 F.3d 220, 249 (6th Cir.

2006). Resentencing would be appropriate if a sentencing court believed it did not have authority

to vary from the crack-to-powder ratio on policy grounds. See United States v. Johnson, 553 F.3d

990, 995–96 (6th Cir. 2009).

       Here, the district judge heard Crider’s extensive arguments on the issue of whether to impose

sentence based on cocaine powder. The court acknowledged that it had discretion to vary from the

crack-to-powder ratio, but the court exercised its discretion to base the sentence on 1.5 kilograms

                                                 8
No. 09-2372/10-1768
United States v. Warner Crider

of cocaine base. Although the court might have given a more explicit reason for denying Crider’s

request to predicate the sentence on cocaine powder, the record shows that the court properly

considered Crider’s arguments and that the court did have a reasoned basis for exercising its

decision-making authority. See United States v. Chiolo, 643 F.3d 177, 184 (6th Cir. 2011).

        4.      Prior Conviction and Criminal History Determination

        Crider next argues that the district court erred when it assigned three criminal-history points

to the state felonious-assault conviction. At trial, the government elicited testimony about the assault

to show that Crider ran the conspiracy with “violence as his trademark.” Brief of Appellee at 23.

In preparing the 2004 presentence report, the probation officer noted that, because the conviction did

not factor into the calculation of Crider’s offense level for the drug offenses, it was not properly

characterized as “relevant conduct” and criminal-history points were assigned.

        Crider relies on United States v. Walker, 210 F.3d 373, 2000 WL 353518 (6th Cir. Mar. 30,

2000). In that case, however, we reiterated our previous holding in United States v. Beddow, 957

F.2d 1330, 1338 (6th Cir. 1992), that the “proper inquiry is whether the prior sentence and the

present offense involve conduct that is severable into two distinct offenses.” Walker, 2000 WL

353518, at *2. Clearly, that is the case here. Crider’s conviction for felonious assault, while

occurring during the time span alleged for the drug conspiracy, is distinct from the offenses of which

he was convicted in this case. Therefore, the district court did not err in including the offense in

Crider’s criminal-history calculation.




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United States v. Warner Crider

       5.      The § 851(c) Hearing

       Crider next argues that the district court erred by failing to hold a hearing on his objection

to the sentencing enhancement under 21 U.S.C. § 851(c). As we stated previously, Crider could

raise on remand only those issues that he properly preserved earlier in the litigation. Crider did not

object to the sentencing enhancement at his original sentencing or in the first appeal. Accordingly,

the district court was not required to consider it.

       6.      Crider’s partial pro se status

       Crider also contends pro se that his Sixth Amendment right to counsel was violated when the

district court “ordered” him to proceed partly with counsel and partly pro se. The record, however,

reflects otherwise.

       At the hearing on a motion to withdraw filed by Crider’s previous counsel, the district court

provided that Crider could have an attorney and also “raise whatever issues you want in supplement

to what your attorney will raise.” R. 241, Mot. to Withdraw as Counsel Tr. at 11. The district judge

clearly did not order Crider to proceed pro se. In light of Crider’s previous inability to work with

four prior attorneys, the district judge allowed Crider the option to file supplemental pro se

documents.

       The district court appointed counsel from the Federal Public Defender’s Office to represent

Crider during his resentencing proceeding. That attorney filed all pertinent pleadings and motions

and attended all hearings related to the resentencing, and Crider also made pro se arguments to the

court. Crider presented no evidence to show that the district court erred in allowing Crider to assist

in the briefing and arguments related to his resentencing.

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No. 09-2372/10-1768
United States v. Warner Crider

          For all of the reasons given above, we conclude that the district court’s sentence on remand

was procedurally reasonable.

C.        Substantive Reasonableness

          “In selecting a sentence, the [district] court must consider the factors set forth in section

3553(a) and arrive at a sentence ‘sufficient, but not greater than necessary to comply with’ those

factors.” United States v. Gunter, 620 F.3d 642, 647 (6th Cir. 2010) (quoting 18 U.S.C. § 3553(a)).

A sentence may be substantively unreasonable “where the district court ‘selects the sentence

arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(a)

factors or giv[es] an unreasonable amount of weight to any pertinent factor.’” United States v. Moon,

513 F.3d 527, 543 (6th Cir. 2008) (quoting United States v. Collington, 461 F.3d 805, 808 (6th Cir.

2006)).

          We have no difficulty concluding that the sentence imposed was substantively reasonable.

The applicable guideline range was life in prison. The district court applied the § 3553(a) factors

and also properly recognized that the sentence should be sufficient, but not greater than necessary

to carry out the purposes of sentencing. The court found that Crider’s drug conspiracy involved very

serious crimes and that Crider’s level of involvement in the conspiracy and his prior criminal record

were important sentencing considerations. The court further found that Crider posed a danger to the

community, and that the sentence imposed would protect the community while deterring others from

engaging in similar conduct. The sentence imposed was substantively reasonable.




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United States v. Warner Crider

D.     Delay between the resentencing hearing and entry of judgment

       Finally, Crider contends pro se that the district court deprived him of due process by not

entering the Judgment and Commitment Order until approximately eight months after the

resentencing hearing. The “Due Process Clause embraces some minimum expectation of a

reasonably timely appeal,” but, “unless there is a period of delay that appears, on its face, to be

unreasonable under the circumstances,” there is no need for further inquiry. United States v. Smith,

94 F.3d 204, 207, 209 (6th Cir. 1996). While we encourage district courts to enter Judgment and

Commitment Orders promptly after sentencing, the delay in this case does not spur us to engage in

further review under the Due Process Clause. Moreover, Crider has not shown prejudice from the

delay because he filed two notices of appeal to assure his appellate rights and we have considered

all of the contentions he raised on appeal, both through counsel and pro se. See id. at 211.

                                      III. CONCLUSION

       For all of the foregoing reasons, we conclude that Crider’s arguments concerning his

resentencing are without merit. Accordingly, we AFFIRM the sentence of the district court.




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United States v. Warner Crider

        CLAY, Circuit Judge, dissenting. Following remand in United States v. Crider, 144 F.

App’x 531 (6th Cir. 2005) (“Crider I”), Defendant appeals his sentence of life imprisonment. The

majority affirms, but in doing so, goes beyond the scope of our mandate in Crider I, and overlooks

the district court’s failure to adequately resolve Defendant’s request for a sentencing variance. For

these reasons, as fully explained below, I respectfully dissent.

        A.      Scope of the Remand in Crider I

        The threshold issue on appeal relates to the scope of our remand order in Crider I, which

reads as follows in relevant part: “We find no error in the calculation of the offense level or criminal

history, but the matter is remanded for reconsideration of the sentence pursuant to Booker.” Id. at

536. The scope of our mandate presents an issue of law that we review de novo, United States v.

Hunter, 646 F.3d 372, 374 (6th Cir. 2011), without deference to the district court’s interpretation.

See United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999) (holding that a district court is

“bound to the scope of the remand issued by the court of appeals”); United States v. Moore, 131 F.3d

595, 598 (6th Cir. 1997).

        In this case, we should find that Crider I ordered a general remand with a specific

limitation—that the district court need not, and could not, reconsider its prior Guidelines

calculations. The Crider I court expressly stated that it found “no error in the calculation of the

offense level or criminal history.” 144 F. App’x 536. This language clearly and unambiguously

expresses an intent to divest the district court of jurisdiction to revisit issues related to “calculation

of the offense level or criminal history.” Id.; see United States v. Parker, 341 F. App’x 122, 124 (6th

Cir. 2009) (finding no error in district court’s failure to reexamine Guidelines calculations on Booker

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United States v. Warner Crider

remand, where the prior appellate decision affirmed the district court’s Guidelines calculations and

“[n]othing in our remand order compelled that reexamination”); United States v. Bandy, 59 F. App’x

611, 614 (6th Cir. 2003) (construing remand order as a general remand with a specific limitation).

The majority opinion should not have reached the merits of the district court’s drug quantity and

criminal history computations; both of those computations were upheld in Crider I and were outside

of the district court’s authority on remand.

       B.      Procedural Reasonableness

       Where, as here, the district court fails to ask the Bostic question, we review the procedural

reasonableness of a sentence for an abuse of discretion. See, e.g., United States v. Chiolo, 643 F.3d

177, 180 n.1 (6th Cir. 2011). A sentence is procedurally unreasonable if the sentencing court “fail[s]

to calculate (or improperly calculat[es]) the Guidelines range, treat[s] the Guidelines as mandatory,

fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s] a sentence based on clearly erroneous

facts, or fail[s] to adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007); see also United

States v. Bacon, 617 F.3d 452, 457 (6th Cir. 2010) (“[A] sentence may be deemed procedurally

unreasonable if the court fails to explain why it rejected a nonfrivolous request for a different

sentence.”).

       On appeal, Defendant challenges the district court’s failure to adequately resolve his request

that the court reject or vary from the crack cocaine Guideline in favor of the more favorable power

cocaine Guideline based on intervening decisions of the Supreme Court. See Spears v. United

States, 555 U.S. 261, 265–66 (2009) (per curiam) (holding that “district courts are entitled to reject

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United States v. Warner Crider

and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those

guidelines”); Kimbrough v. United States, 552 U.S. 85 (2007). In response to Defendant’s request,

the district court recognized its authority to reject the crack cocaine Guideline, but simply stated that

it believed that the crack cocaine and power cocaine Guidelines were bad policy.2

        The district court, however, failed to make an express ruling on Defendant’s request, and to

the extent a ruling may be implied from the context, the court failed to adequately explain any

implied ruling. The district court at sentencing seemed to possibly agree with Defendant’s policy-

based arguments as to the disparity, but the conversation soon turned to other topics, and the district

court, for reasons unknown, failed to return to and rule upon Defendant’s original request. Based

on the record, one might fairly speculate that the district court perhaps “misconstrued, ignored, or

forgot” about the request altogether. United States v. Thomas, 498 F.3d 336, 341 (6th Cir. 2007).

Although the district court was “not required to vary or disagree with the crack cocaine guidelines,”

United States v. Smith, 350 F. App’x 54, 57 (6th Cir. 2009), in the absence of any indication in the

record that the district court gave meaningful consideration to Defendant’s request, or was even

aware that the issue apparently remained unresolved, we should remand for resentencing. See

Bacon, 617 F.3d at 457; United States v. Robertson, 309 F. App’x 918, 925 (6th Cir. 2009).

        Accordingly, for the reasons discussed herein, I would remand for resentencing.


        2
         Specifically, the district court stated: “I recognize the court has given me the authority in
terms of powder and crack, and I generally agree that disparity is bad policy. There is no basis in
reality of the difference between powder and crack. Powder is a longer high, as I understand it. The
crack is a higher high, but for a shorter period, whatever. That’s for the chemists to work out. They
are both bad drugs. There’s nothing good about powder and there’s nothing good about crack.”
(Sent’g Hr’g Tr. 48:10–18, Oct. 8, 2009.)

                                                   15
