                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0128n.06

                                       Case No. 17-6470

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Mar 18, 2019
UNITED STATES OF AMERICA,                          )                       DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE MIDDLE DISTRICT OF
TROY ANTHONY MCFARLAND, SR.,                       )      TENNESSEE
                                                   )
       Defendant-Appellant.                        )
____________________________________/


Before: KEITH, MERRITT, and LARSEN, Circuit Judges.

       DAMON J. Keith, Circuit Judge. Appellant Troy McFarland, Sr. (“McFarland”) is

serving a 200-month federal sentence for conspiring to distribute a controlled substance. After a

wiretap investigation led to his arrest, agents searched his residence and found drugs, drug

paraphernalia, and two firearms. He was charged with a single count on a multi-count, multi-

defendant indictment, and pled guilty without a plea agreement.        McFarland’s Sentencing

Guidelines calculations included enhancements for firearm possession and for being a leader in a

conspiracy. McFarland appeals his below-Guidelines sentence. For the reasons that follow, we

AFFIRM McFarland’s sentence.
Case No. 17-6470, United States v. McFarland


                                                 I.

A. Investigation and Arrest

       McFarland was charged with a single count of conspiring to distribute Oxycodone,

Oxymorphone, and Hydromorphone in violation of 21 U.S.C. §§ 841(a)(1), 846. The count

contained four co-defendants: Daunte Lillard (“Lillard”), Troy McFarland, Jr. (“McFarland, Jr.”),

Rachel Siegelman (“Siegelman”), and Willie Thompson (“Thompson”). The events leading up to

and surrounding his arrest are as follows.

       From September 2014 through April 2015, the Drug Enforcement Administration (“DEA”)

investigated the distribution of diverted prescription pills and heroin in the Middle District of

Tennessee. As a part of this investigation, DEA agents used wiretaps to intercept calls and text

messages between the co-conspirators.

       In February 2015, DEA agents intercepted a call between McFarland and Lillard, a co-

defendant, in which McFarland instructed Lillard to deposit money into two bank accounts

belonging to Tyesha Braithwaite. McFarland told Lillard to go to two different banks to avoid

detection by authorities. A DEA agent testified at McFarland’s sentencing hearing that McFarland

supplied diverted pills to Lillard. In a second call that same day, McFarland also told Lillard that

he bought ten phones to hand out to his organizational members, and explained that if members

only used the phones to communicate with each other, law enforcement could not intercept their

calls. Later that month, DEA agents intercepted another call, in which McFarland instructed

Lillard to deposit money into another account, this time belonging to Matthew Henson, and

provided Lillard with the account number.

       On April 7, 2015, Los Angeles Sheriff’s Department officers stopped Shantoya Fannin

(“Fannin”) at the Los Angeles International Airport (“LAX”), where they seized $20,260



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concealed inside toiletry boxes within her suitcase. Agents searched her phone, and discovered

that about a week earlier, Fannin texted McFarland and told him that she needed money. From

the text messages, agents learned that on April 3, 2015, McFarland arranged for Fannin to fly to

Nashville from Los Angeles, where McFarland, Jr. picked her up from the airport and drove her

to a Marriott Hotel. Two days later, agents believe that Siegelman—another co-defendant—gave

Fannin the money. Fannin returned to Los Angeles the next day, where she was detained. Fannin

told agents that she was to receive $2,000 for transporting the money. Shortly after she was

stopped, agents intercepted a phone call from Fannin to McFarland that lasted about seven minutes.

Within minutes after speaking with Fannin, McFarland called Lillard and said, “throw that phone

away” and “kill the line.” Agents believe that McFarland instructed Lillard to discard his cellphone

because the money was seized.

       Twelve days later, using GPS data from McFarland’s cellphone, agents learned that he was

near a home located at 712 Cielo Vista Road in Lexington, Kentucky. While conducting

surveillance, agents noticed a blue Chrysler and a gold Hyundai frequenting the home. After

detecting McFarland’s phone leaving the area, Kentucky State Police conducted a traffic stop on

McFarland’s vehicle—the blue Chrysler. McFarland consented to a search of his vehicle, and the

state trooper found $5,000 cash on McFarland’s person, as well as the cellphone agents were

tracking. McFarland was arrested for driving on a suspended license, and was picked up by

McFarland, Jr. after being released from custody on bond. Agents used cellphone data to track

McFarland traveling in McFarland, Jr.’s vehicle, and observed the gold Hyundai following

McFarland, Jr. Officers stopped and searched both vehicles, but no guns or drugs were found.

The driver of the gold Hyundai was identified as Siegelman.




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Case No. 17-6470, United States v. McFarland


       Later that day, agents intercepted a call between Lillard and co-defendant Thompson

discussing what agents believed was the impending sale of pills at the Marriott Courtyard Hotel.

Agents observed Lillard, Thompson, and McFarland, Jr. meeting in the hotel parking lot, and

approached their vehicles.     When police ordered McFarland, Jr. out of Lillard’s vehicle,

McFarland, Jr. reached into his pants and threw a large amount of cash—later determined to be

approximately $24,000—on the vehicle’s console. Agents arrested the men, and afterwards went

to a hotel room registered under the name “McFarland.” McFarland and Siegelman were in the

hotel room, and agents took them into custody. Upon executing a search warrant on the hotel

room, agents found and seized large amounts of diverted prescription pills, many that were in plain

view and others that were concealed inside large vitamin bottles. After testing, it was determined

that agents seized 871 Oxycodone 30-mg pills, 1,280 Oxymorphone 40-mg pills, and 945

Hydromorphone 4-mg pills.

       Agents later learned that McFarland leased the Cielo Vista Road residence. Before

executing a search warrant, agents knocked on the front door of the residence. A man and woman

answered the door, and told agents that they received a late-night jail phone call from McFarland,

who told them that the back door was unlocked and that they could stay at the residence while they

were on vacation from California. After consenting to a search of their vehicle, the couple left the

home. Agents also spoke with a neighbor, who said she observed a man matching McFarland’s

description driving a dark blue or black Chrysler frequently park on the side street and go in and

out of the back door of the residence. The agent showed the neighbor a picture of Siegelman, who

the neighbor said she saw at the residence on a regular basis.

       After obtaining a search warrant, agents searched the premises, where they found male and

female clothes in the master bedroom. Agents also found McFarland’s driver’s license and letters



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Case No. 17-6470, United States v. McFarland


addressed to him on a nightstand. Hydrocodone pills, Oxycodone pills, and crack cocaine were

found in the master bedroom, along with Siegelman’s passport and other documents containing

her name. Agents also found a computer with “Troy McFarland” displayed above a password bar

on the screen, and the lease to the residence with McFarland’s name on it elsewhere in the

residence.

       Agents found marijuana, Xanax pills, and heroin in the kitchen, and a kilo-press in the

dining room. Elsewhere, agents located items consistent with drug trafficking, including four

cellphones, cutting agents, electrical tape, gloves, masks, charcoal, food saver/sealer machines,

and packaging materials.

       In the attic, agents discovered a Helwan nine-millimeter handgun and magazine, and a

Draco assault rifle and magazine. These weapons were sealed in what appeared to be the same

packaging material found downstairs. Agents also found heroin sealed in packaging material in

the attic about eight to ten feet away from the firearms.

B. Sentencing Hearing

       On October 12, 2016, McFarland pled guilty without a plea agreement to a single count of

conspiracy to distribute controlled substances. The probation office prepared a Presentence Report

(“PSR”) with a Guidelines calculation. After receiving a two-point enhancement for possessing a

firearm and a four-point enhancement for leadership in criminal activity involving five or more

participants, McFarland received a total offense level of 33. See U.S.S.G. § 2D1.1(b)(1); U.S.S.G.

§ 3B1.1(a). For these charges, his criminal history category was five. This resulted in an advisory

Guidelines range of 210 to 240 months imprisonment. The Government requested that the district

court impose a sentence of 210 months.




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Case No. 17-6470, United States v. McFarland


       McFarland filed objections to these enhancements. He first argued that the two-point

firearm enhancement was unwarranted because the Government did not prove that he

constructively possessed the firearms found in the attic, or that the firearms were connected to the

offense. The district court overruled this objection, noting that because McFarland leased the

premises and that his clothes and drugs were in proximity to the firearms “[i]t’s clear that he had

constructive possession.” The district court also found that McFarland had not shown that it was

clearly improbable that the firearms were connected to the offense.

       McFarland also argued that he only deserved a two-point enhancement for leadership under

§ 3B1.1(c) because he only exercised control over one person, Shantoya Fannin. The district court

overruled this objection, finding that McFarland was the leader of five or more people in a

conspiracy.

       Additionally, McFarland filed a motion in which he requested “a mitigated sentence and

departure/variance below the sentencing guidelines.” He provided several arguments for a

mitigated sentence and claimed that his criminal history was overstated. The district court denied

his motion, finding that McFarland’s criminal history was not mitigated by the facts he presented.

       In support of his argument for a variance, McFarland presented two witnesses at

sentencing. First, Tyesha Braithwaite, testified that McFarland was a hands-on caregiver to their

disabled son.    Next, McFarland’s mother, Sara Allen, testified to McFarland’s challenging

childhood, which included him being bullied because of his mother’s sexuality. McFarland also

argued for a variance to avoid unwarranted sentencing disparity by presenting evidence of

defendants who received lesser sentences than McFarland’s Guidelines range for trafficking

similar drugs.




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Case No. 17-6470, United States v. McFarland


       After acknowledging that the Guidelines are advisory and considering “the totality of all

the facts involved in [this] case,” the district court concluded that there were “some redeeming

factors about [McFarland] that perhaps might warrant a variance,” and sentenced McFarland to

200 months in prison.

                                                II.

       On appeal, McFarland argues: 1) the district court erred in increasing his offense level by

two points for possessing a firearm; 2) he should not have received a four-point enhancement for

leadership in criminal activity involving five or more participants; 3) his criminal history is

overstated; and 4) the district court did not adequately meet the requirements of 18 U.S.C. § 3553

in fashioning his sentence.

A. Firearms Enhancement

       McFarland first argues that the district court erred when it increased his offense level by

two points for possessing a firearm in connection with the offense under U.S.S.G. § 2D1.1(b)(1).

Specifically, he argues that the Government’s evidence did not establish that he was in constructive

possession of the firearms. He also argues that even if the Government established constructive

possession, the evidence showed that it was clearly improbable that the firearms were connected

to his offense.

       In order to justify an enhancement under § 2D1.1(b)(1), the Government “has the initial

burden of showing by a preponderance of the evidence that the defendant possessed the firearm.”

United States v. Ruiz Solorio, 337 F.3d 580, 599 (6th Cir. 2003) (internal citation and quotation

omitted). Possession can be actual or constructive. Constructive possession exists when a

defendant “‘knowingly has the power and the intention at a given time to exercise dominion and

control over an object, either directly or through others.’” United States v. Crumpton, 824 F.3d



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Case No. 17-6470, United States v. McFarland


593, 609 (6th Cir. 2016) (quoting United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)).

“[N]onexclusive possession does not establish ‘dominion over the premises’ sufficient to show

constructive possession.” United States v. Bailey, 553 F.3d 940, 944 n.3 (6th Cir. 2009). However,

constructive possession can be found where there is additional incriminating evidence showing the

defendant knew of and controlled the contraband. United States v. Wren, 528 F. App’x 500, 506

(6th Cir. 2013) (citing Bailey, 553 F.3d at 944 n.3). Once possession is established, “[t]he burden

then shifts to the defendant to demonstrate that it was clearly improbable that the weapon was

connected to the offense.” Ruiz Solorio, 337 F.3d at 599 (internal citation and quotations omitted).

We review a district court’s factual finding that the defendant possessed a firearm in connection

with a drug crime for clear error. United States v. Hough, 276 F.3d 884, 894 (6th Cir. 2002).

       Because McFarland was not arrested with actual possession of the firearms, the

Government must show he constructively possessed the firearms. The Government has met this

burden by proffering additional incriminating evidence connecting him to the firearms. McFarland

leased the residence where the guns were found. His driver’s license, computer, letters, clothes,

and other personally belongings were found in the house, along with drugs and drug paraphernalia.

All of this evidence establishes that McFarland knowingly had the power and intention to exercise

dominion or control over the area where the firearms were found. See Ruiz Solorio, 337 F.3d at

599 (finding the Government met its burden of showing constructive possession where the

defendant “leased the apartment where the guns were found”).

       McFarland argues that he did not constructively possess the firearms because they were

hidden away in the attic. The location of these weapons does not change the court’s analysis under

this factual scenario. Considering that McFarland’s name was on the lease and that his personal

belongings were found throughout the residence, the evidence suggests that he could have



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Case No. 17-6470, United States v. McFarland


retrieved the weapons whenever he wanted. See Hough, 276 F.3d at 895 (noting that the defendant

could have retrieved a gun located upstairs whenever he desired). Further, even if accessibility

was limited, the firearms were found near drugs, and drugs were found throughout the house,

including the kitchen and master bedroom. See United States v. Edmonds, 9 F. App’x 330, 332

(6th Cir. 2001) (upholding a firearms enhancement where “[a]lthough accessibility was limited by

the lock on the safe, the revolver was not remote from paraphernalia and contraband seized from

Edmonds’s home”); United States v. Greeno, 679 F.3d 510, 515 (6th Cir. 2012) (upholding a

§ 2D1.1(b)(1) enhancement where “the firearms were found . . . in relatively close proximity to

drugs and drug paraphernalia”). The evidence suggests that McFarland had dominion over the

residence, including the attic.

       McFarland also argues that he did not have exclusive dominion because Siegelman had as

many belongings in the house as he did. However, the same neighbor who saw Siegelman

frequenting the house also saw McFarland frequenting the house, as McFarland concedes. This,

coupled with the various personal and illegal items found at the residence McFarland leased,

provides sufficient incriminating evidence to show that McFarland knew of and controlled the

weapons. “The weapons were in easy reach had [McFarland] wished to get them.” Hough,

276 F.3d at 894 (rejecting defendant’s argument that firearms located at his residence cannot be

attributed to him because he did not exclusively reside in the home). Even if Siegelman also had

access to the firearms, the law recognizes joint possession, which does not preclude a finding that

McFarland constructively possessed the firearms. United States v. Wheaton, 517 F.3d 350, 367

(6th Cir. 2008).

       McFarland has not met his burden of showing that it was clearly improbable that the two

firearms were connected with the offense. See Ruiz Solorio, 337 F.3d at 599. McFarland argues



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that because the firearms were found near heroin, they appear to have been connected to heroin,

which McFarland was not charged with conspiring to distribute. But while McFarland was not

convicted of trafficking heroin, the heroin in his attic was attributed to him for sentencing purposes.

And the pistol was wrapped in the same packaging material used to seal drugs downstairs. The

claim that the firearms were unrelated to McFarland’s drug conspiracy is thus mere speculation,

and McFarland must present evidence, not argument or speculation, to meet his burden. Greeno,

679 F.3d at 514. See also Wheaton, 517 F.3d at 368 (“The bare assertion of Wheaton’s counsel

that the gun might simply have been for the lawful purpose of defending the residence is

insufficient to sustain Wheaton’s burden of showing that it was ‘clearly improbable’ that the gun

was related to the drug conspiracy.”). Further, McFarland provided no evidence that the type of

weapons found are clearly not the type of firearms typically associated with drug trafficking. See

U.S.S.G. § 2D1.1 application note 11 (explaining that “the enhancement would not be applied if

the defendant . . . had an unloaded hunting rifle in the closet”); see also Edmonds, 9 F. App’x at

332 (upholding a district court’s decision to apply the enhancement in part because the defendant

presented no evidence that the gun was “inoperable or an antique collectible”). McFarland failed

to refute the Government’s evidence, and the district court did not mistakenly apply the

enhancement. See Wheaton, 517 F.3d at 367 (“A finding of fact is clearly erroneous when,

although there may be some evidence to support the finding, the reviewing court . . . is left with

the definite and firm conviction that a mistake has been committed.” (internal citation and

quotation omitted)).




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Case No. 17-6470, United States v. McFarland


B. Leadership Role Enhancement

       Next, McFarland argues that he should not have received a four-level increase in his base

offense level under § 3B1.1(a) for his leadership role in a criminal enterprise. He argues that

instead, a two-level increase under § 3B1.1(c) would have been more appropriate.

       “Traditionally, legal conclusions are reviewed de novo and factual findings are reviewed

for clear error.” United States v. Washington, 715 F.3d 975, 982 (6th Cir. 2013). However,

because the district court is best situated to legally conclude whether someone is a leader in a

conspiracy under § 3B1.1, we grant this conclusion a deferential standard of review. Id at 983.

       Under the Guidelines, a defendant’s base offense level should be increased by four levels

“[i]f the defendant was an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive[.]” U.S.S.G. § 3B1.1(a). McFarland argues that this

enhancement is unwarranted because the district court did not justify its finding that McFarland

led five or more people. However, as the Government notes, to qualify for this enhancement,

McFarland only needed to have been the organizer or leader “of one or more other participants.”

U.S.S.G. § 3B1.1 application note 2. See also United States v. Robinson, 503 F.3d 522, 529, (6th

Cir. 2007) (“[A] defendant whose sentence is enhanced under § 3B1.1(a) need only supervise or

manage one of the five or more other participants.”). Participants are persons, convicted or not,

“who were [] aware of the criminal objective, and [] knowingly offered their assistance.” Id. See

also U.S.S.G. § 3B1.1 application note 1 (“A ‘participant’ is a person who is criminally responsible

for the commission of the offense, but need not have been convicted.”).

       As McFarland acknowledges in his briefing, his attorney at sentencing conceded that he

exercised control over Fannin—a participant in the conspiracy—who he instructed to fly to LAX

from Nashville with over $20,000. Further, as the Government highlights, McFarland was



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Case No. 17-6470, United States v. McFarland


convicted of a conspiracy to distribute controlled substances with four co-defendants. The district

court erred in suggesting that McFarland needed to be the leader of five or more people to qualify

for the enhancement. However, given McFarland’s concession to being a leader of one individual

in a conspiracy that involved at least six participants, under the plain language of the Guidelines,

this error is harmless.

        Accordingly, McFarland’s argument fails, and we defer to the district court’s decision to

apply the enhancement.

C. Criminal History Category

        McFarland next argues that his criminal history category under the Guidelines was

overstated.   Specifically, he argues that six criminal history points he received from two

convictions in 1992 unfairly inflate his criminal history, unduly resulting in him earning a criminal

history category of five.

        As the Government notes, McFarland does not make clear whether he is seeking a

downward departure under U.S.S.G. § 4A1.3(b)(1), or a variance under 18 U.S.C. § 3553(a).

A “departure” refers to the imposition of a sentence outside of the calculated Guidelines range

based on the district court’s application of a particular Guidelines provision, whereas a “variance”

refers to a sentence outside the Guidelines range based on the district court’s consideration of one

or more of the 18 U.S.C. § 3553(a) sentencing factors. United States v. Grams, 566 F.3d 683,

686–87 (6th Cir. 2009). Because McFarland discusses this argument while citing his Guidelines

calculation in his briefing before the district court, we agree with the Government’s position that

McFarland appears to be requesting a departure under the Guidelines.

        If reliable information suggests that a defendant’s criminal history category substantially

over-represents the seriousness of the defendant’s criminal history, a downward departure may be



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warranted. U.S.S.G. § 4A1.3(b)(1). “A district court’s failure to grant a downward departure can

only be reviewed by us upon appeal if the lower court erroneously believed that it lacked authority

to grant such a departure as a matter of law.” United States v. Lucas, 357 F.3d 599, 609 (6th Cir.

2004). “We do not require that a district court explicitly state that it is aware of its discretion to

make such a departure. Rather, we presume that the district court understood its discretion, absent

clear evidence to the contrary.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008)

(internal citations omitted).

         After hearing arguments from both parties, the district court denied McFarland’s motion,

finding that “the defendant’s criminal history is not mitigated by the facts counsel has presented.”

There is no evidence that the district court was not aware it had the discretion to depart downward,

so we decline to review its decision not to grant the departure.

         McFarland argues that because the district court never mentioned “departure” in denying

his motion, his request for departure was never ruled upon. He requests a plain error review of his

criminal history. However, “we have not required that district courts carefully distinguish between

whether the decision to deviate from the advisory Guidelines range is based on a departure or

variance.” United States v. Herrera-Zuniga, 571 F.3d 568, 586 (6th Cir. 2009). “[C]hoice of

vocabulary is not dispositive” and instead “we must examine the transcript of the sentencing

hearing to determine whether the court was aware of . . . its authority to vary from the Guidelines

range.” United States v. Borden, 365 F. App’x 617, 621 (6th Cir. 2010). Because the district court

did vary from the Guidelines, it was clearly aware of its authority to do so. McFarland’s argument

fails.




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D. Reasonableness

        McFarland argues that in sentencing him, the district court did not meet the requirements

of 18 U.S.C. § 3553. He argues that the district court did not adequately explain its reasoning for

sentencing him below the Guidelines, or convey that it had considered McFarland’s arguments at

sentencing. Though unclear, it appears McFarland is challenging the reasonableness of his

sentence, so we will treat his arguments as such.

        A reasonableness inquiry has “both procedural and substantive components.” United

States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006). A sentence may be procedurally unreasonable

if “the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’

the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an

appropriate sentence without such required consideration.” United States v. Webb, 403 F.3d 373,

383 (6th Cir. 2005). Substantive reasonableness concerns whether a “sentence is too long (if a

defendant appeals) or too short (if the government appeals).” United States v. Rayyan, 885 F.3d

436, 442 (6th Cir. 2018). “The point is not that the district court failed to consider a factor or

considered an inappropriate factor; that’s the job of procedural unreasonableness.” Id. Rather,

alleging substantive unreasonableness is “a complaint that the court placed too much weight on

some of the § 3553(a) factors and too little on others in sentencing the individual.” Id.

        “We review a district court’s sentencing determination for reasonableness, using a

deferential abuse-of-discretion standard.” United States v. Carson, 560 F.3d 566, 585, (6th Cir.

2009). But when, as here, the district court asks the parties if there are any objections to its

sentence and the parties raise none, we review the sentence for procedural reasonableness for plain

error. United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). “A ‘plain error’ is an error

that is clear or obvious, and if it affects substantial rights, it may be noticed by an appellate court.”



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Id. at 873 (internal citation omitted).     Sentences within the Guidelines are presumptively

reasonable. United States v. Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008) (en banc). “[I]t follows

from simple logic that a below-Guidelines sentence is presumed not to be unreasonably severe.”

United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008) (internal citations and quotations

omitted).

1. Procedural Reasonableness

       McFarland argues that the district court inadequately explained the reasonings behind its

sentence. This argument is a challenge to the procedural reasonableness of the sentence. See Gall

v. United States, 552 U.S. 38, 51 (2007) (categorizing a “fail[ure] to adequately explain the chosen

sentence” as a procedural error.). In fashioning a sentence, a district court should consider the

nature and circumstances of the offense, the history and characteristics of the defendant, as well

as the need for the sentence to reflect the seriousness of the offense, afford adequate deterrence,

protect the public, and appropriately rehabilitate the defendant. 18 U.S.C. § 3553(a). A district

court must state its reasonings for imposing its sentence, 18 U.S.C. § 3553(c), but does need not

to “engage in a ritualistic incantation of the § 3553(a) factors it considers.” United States v.

Chandler, 419 F.3d 484, 488 (6th Cir. 2005) (internal citation and quotations omitted). Rather, a

“sentencing judge should set forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

       We are satisfied that the district court had a reasoned basis for fashioning its sentence. At

the sentencing hearing, the district court considered McFarland’s history and characteristics by

acknowledging McFarland’s “very tough childhood,” and recognized McFarland’s “compassion

for [his] son’s illness.” The district court considered the seriousness of McFarland’s offense by



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acknowledging that he put McFarland, Jr. and Siegelman, individuals he claimed to have cared

for, in a “vulnerable” position as his co-defendants. In saying that McFarland’s drug trafficking

offense “affected a lot of lives” and “fed their addictions,” the district court considered the need to

protect the public from McFarland’s further crimes. However, in analyzing the “totality of all the

facts” and considering the witnesses’ statements and the parties’ arguments, the district court

considered the possibility of McFarland coming out of prison a rehabilitated and “useful person.”

He recognized McFarland’s “redeeming factors,” and granted him a variance below the

Guidelines. Analyzing the record as a whole, Rita, 551 U.S. at 359, the district court clearly

explained why it chose its sentence, and incorporated McFarland’s arguments for variance into its

explanation. See United States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007) (“The district court

must provide a clear explanation of why it has either accepted or rejected the parties’ arguments

and thereby chosen the particular sentence imposed, regardless of whether it is within or outside

of the Guidelines.”). McFarland’s sentence is procedurally reasonable.

2. Substantive Reasonableness

       McFarland also argues that the district court failed to give sufficient weight to the need to

avoid unwarranted sentencing disparities, a § 3553(a) factor. Additionally, he questions whether

a 200-month sentence for McFarland—who at the time was fifty-one years old—is sufficient but

not greater than necessary to meet the goals of sentencing. These arguments are a challenge to the

substantive reasonableness of the sentence. See Jones, 489 F.3d at 252; United States v. Tristan-

Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010) (“The essence of a substantive-reasonableness

claim is whether the length of the sentence is ‘greater than necessary’ to achieve the sentencing

goals set forth in 18 U.S.C. § 3553(a).”).




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       In his motion for departure/variance, McFarland included a chart of dozens of cases in

which defendants who were convicted of similar conduct were sentenced for less time than

McFarland’s Guidelines range. At sentencing, McFarland explained that drug quantity was

previously measured by considering the weight of the active ingredient in the pill. In McFarland’s

case, drug quantity was calculated by considering the weight of the entire pill. McFarland contends

that calculating drug quantity using the prior method would reduce his base offense level, thereby

reducing his Guidelines range, which is a reason the district court should vary. The district court

was correct in rejecting McFarland’s request for variance based on a change in the way the

Guidelines are calculated as “this is not the kind of disparity § 3553(a)(6) is after.” United States

v. Bradley, 897 F.3d 779, 786 (6th Cir. 2018). McFarland also notes that many of the cases he

presented included doctors who received much lower sentences for distributing much higher pill

quantities.   However, as the Government argues, without considering details such as the

defendants’ criminal histories or possible cooperation with the Government, these cases do not

provide much assistance. “Because [McFarland’s] argument ultimately boils down to an assertion

that the district court should have balanced the § 3553(a) factors differently [by placing more

emphasis on the need to avoid unwanted sentencing disparities,] it is simply beyond the scope of

our appellate review.” United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008).

       McFarland’s argument for variance based on his age also fails. “Although [McFarland]

may have wanted the district court to show even greater leniency based on his age . . . the court’s

decision not to do so does not render the sentence unreasonable.” United States v. Wolcott, 483 F.

App’x 980, 989 (6th Cir. 2012).         The district court’s below-Guidelines sentence is not

substantively unreasonably.




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Case No. 17-6470, United States v. McFarland


                                                 III.

       For the reasons stated above, we AFFRIM the district court’s sentence.




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