                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 12a0061n.06

                                             No. 10-1792
                                                                                              FILED
                               UNITED STATES COURT OF APPEALS                            Jan 18, 2012
                                    FOR THE SIXTH CIRCUIT
                                                                                  LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )       ON APPEAL FROM THE UNITED
v.                                                      )       STATES DISTRICT COURT FOR
                                                        )       THE WESTERN DISTRICT OF
CORY KENT TRAXLER,                                      )       MICHIGAN
                                                        )
       Defendant-Appellee.                              )




       BEFORE: KENNEDY, MARTIN, and STRANCH, Circuit Judges.



       BOYCE F. MARTIN, JR. Cory Kent Traxler pled guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). A probation officer prepared a presentence report,

concluding that Traxler’s base offense level was thirty-three because he is an armed career criminal

under USSG § 4B1.4. The probation officer subtracted three levels for acceptance of responsibility,

resulting in a total offense level of thirty. Based on this offense level and a criminal history category

of V, Taxler’s guidelines range was 151 to 188 months of imprisonment. Traxler, however, was

subject to a mandatory minimum sentence of 180 months of imprisonment under 18 U.S.C. § 924(e),

making his guidelines range 180 to 188 months of imprisonment. The district court granted the

government’s motion to depart downward from the statutory minimum sentence based on Traxler’s

substantial assistance, and the court sentenced Traxler to sixty months of imprisonment and three

years of supervised release.

       On appeal, the government argues that the district court erred by considering factors other than

Traxler’s substantial assistance when determining the extent to which it would depart downward from
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                                                  -2-

the statutory minimum sentence. Because the government failed to raise this specific objection at

Traxler’s sentencing hearing, we review the issue for plain error. See United States v. McIntosh, 484

F.3d 832, 835-36 (6th Cir. 2007). “Plain error” means that an error is clear or obvious. Id. at 836.

The error must have affected an individual’s substantial rights, and seriously affected the fairness,

integrity, or public reputation of the judicial proceeding. Id.

        A district court’s decision to depart downward from the statutory minimum sentence under

18 U.S.C. § 3553(e), along with any extent of such departure, “must be based solely upon the

substantial assistance rendered by the defendant.” United States v. Bullard, 390 F.3d 413, 416 (6th

Cir. 2004) (internal quotation marks and citation omitted, emphasis in original). The district court,

when determining its downward departure decision, explicitly considered several sentencing factors

set forth in 18 U.S.C. § 3553(a).

        The dissent respectively notes that in addition to the government’s motion, Traxler had moved

for a downward variance. The dissent feels that although the district court should have been more

specific on how it reached its decision given the interplay with the two pending motions, because the

district court reached a sentence that it felt was “sufficient, but not greater than necessary” to satisfy

the requirements of § 3553(a), we should affirm the district court’s judgment.

        We have held that “there should be some indication of error in the record justifying” a remand

for resentencing. United States v. Guest, 564 F.3d 777, 779 (6th Cir. 2009). Such an error exists in

this case. The confusion that exists, i.e., how the district court reached its sentence in light of the
government’s and Traxler’s pending motions, is a sufficient enough indication of an error to justify

the remand. We are left to speculate whether the district court based its sentence strictly on the

government’s motion, while erroneously considering factors prohibited by Bullard; whether the

district court reached its sentence strictly based on Traxler’s motion; or whether the district court

determined its sentence based on a combination of both motions. Without sufficient explanation by

the district court, the sentencing transcript makes it appear that the district court relied on non-

substantial assistance factors that are prohibited by Bullard. Thus, the district court’s error constitutes

plain error because the error was clear and affected the fairness of the sentencing proceeding. See
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Bullard, 390 F.3d at 417; see also United States v. Bostic, 371 F.3d 865, 876-77 (6th Cir. 2004).

Further, because the district court failed to adequately explain its chosen sentence, the sentence is

deemed to be procedurally unreasonable and the case must be remanded for resentencing. See Gall

v. United States, 552 U.S. 38, 51 (2007); United States v. Massey, No. 10-1335, 2011 WL 6260356,

at *3 (6th Cir. Dec. 16, 2011); United States v. Blue, 557 F.3d 682, 684 (6th Cir. 2009).

       Accordingly, we vacate Traxler’s sentence and remand the case for resentencing.
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                                                -4-

       Jane B. Stranch, dissenting. My review of the record reveals that Traxler’s sentence resulted

from the district court’s grant of two separate motions. The majority opinion addresses only the

government’s motion for a downward departure based on substantial assistance, the grant of which

rendered the statutory minimum sentence no longer applicable and allowed the court to depart from

the bottom of the guideline range. But, following that analysis, the court asked the defense to argue

its motion for a downward variance. After argument, the court engaged in a lengthy colloquy with

Traxler about the severity of his criminal conduct and its effects, but also encouraged Traxler to

continue his ongoing efforts to take responsibility for his criminal conduct and reform his life. The

court then turned to the § 3553(a) factors that govern analysis of a downward variance and the

sentence to be imposed.

       To facilitate appellate review, it would have been preferable for the court to specify how far

it departed downward based on substantial assistance and how far it varied downward based on other

appropriate considerations. But I have no trouble concluding on the record as a whole that the court

adequately explained why the sentence imposed was “sufficient, but not greater than necessary, to

comply with” the § 3553(a) factors. See Gall v. United States, 552 U.S. 38, 46 (2007). The court

observed that criminal history category V over-represented Traxler’s criminal record where the

reported convictions were ten years old, and applying the § 3553(a) factors, the court discussed the

nature and circumstances of the offense, Traxler’s history and characteristics, the seriousness of the

offense, the need for just punishment and adequate deterrence, and the need to provide Traxler with

vocational or educational programming in prison to further support his reformative goals. Because

the sentence was sufficiently and properly explained, I would affirm. Accordingly, I respectfully

dissent from the majority’s opinion.
