                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0025n.06

                                            No. 14-3110
                                                                                     FILED
                                                                               Jan 08, 2015
                                                                           DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )    ON APPEAL FROM THE UNITED
                                                )
v.                                                   STATES DISTRICT COURT FOR THE
                                                )
                                                )    NORTHERN DISTRICT OF OHIO
CLAYTON HARRIS,
                                                )
       Defendant-Appellant                      )



BEFORE:        DAUGHTREY, CLAY, and COOK, Circuit Judges.

       PER CURIAM. Defendant Clayton Harris pleaded guilty to an indictment charging him

with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At the

sentencing hearing, the district court calculated the applicable Guidelines range as 37 to 46

months. Harris asked the court to take into account the sentence that he would have received had

he been charged in Ohio state court rather than federal court. Harris’s attorney cited 18 U.S.C.

§ 3553(a)(6), which requires the sentencing court to consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of

similar conduct,” and argued that Ohio law would have punished Harris with a maximum prison

sentence of 36 months, while allowing for the possibility of probation or community control in

lieu of incarceration. The district court denied the request but did apply a downward variance

that resulted in a sentence of 33 months.
No. 14-3110, United States of America v. Harris


       On appeal, Harris makes the same argument that he presented in district court, i.e., that in

order to satisfy 18 U.S.C. § 3553(a)(6), the court should consider the sentence he would have

received had he been charged in state rather than federal court. The district judge declined to do

so, saying that he was prevented from taking state sentencing provisions into account under the

decisions of this court. The district court undoubtedly had in mind our opinion in United States

v. Malone, 503 F.3d 481 (6th Cir. 2007), in which we held that “it is impermissible for a district

court to consider the defendant’s likely state court sentence as a factor in determining his federal

sentence.” Id. at 486. As we explained in Malone, “[§ 3553(a)(6)] is directed only at federal

court to federal court disparities, not those that may exist between federal and state courts.” Id.


       Because one of the “primary goals” of the Sentencing Guidelines was to “create some

uniformity amongst federal defendants convicted of federal crimes and sentenced in federal

courts,” we concluded in Malone that permitting district courts to consider state sentences would

“enhance, rather than diminish” the disparities of concern to Congress. Id. In taking this

position, we are not alone.     Every other circuit to consider this question post-Booker has

concluded that, at a minimum, § 3553(a)(6) does not require district courts to take into account

federal-state sentencing disparities. See United States v. Ringgold, 571 F.3d 948, 950-53 (9th

Cir. 2009); United States v. Johnson, 505 F.3d 120, 123-24 (2d Cir. 2007); United States v.

Wurzinger, 467 F.3d 649, 653-54 (7th Cir. 2006); United States v. Jeremiah, 446 F.3d 805 (8th

Cir. 2006); United States v. Clark, 434 F.3d 684 (4th Cir. 2006); United States v. Branson,

463 F.3d 1110, 1112-13 (10th Cir. 2006).


       Harris makes two arguments for disregarding Malone, but neither is availing. First, he

attempts to distinguish Malone on the basis that the defendant in that case was an armed career

offender and, as the Malone court noted, a motivation behind the armed career offender

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No. 14-3110, United States of America v. Harris


provisions was Congress’s perception that defendants were “treated too gently by state courts.”

Malone, 503 F.3d at 486 (internal quotation marks and citation omitted). But that language

appears as an afterthought and only in the portion of the opinion applying the decided-upon rule

to the facts. Moreover, Malone cited and expressly agreed with cases from other circuits that did

not involve armed career offenders. See, e.g., Wurzinger, 467 F.3d at 650.


       Second, Harris argues that Malone is inconsistent with United States v. Houston,

529 F.3d 743, 752 (6th Cir. 2008), which held that district courts, in their “discretion, might . . .

consider[] local disparities to be a relevant consideration . . . .” But Harris misconstrues the

decision in that case, because Houston referred to “sentences imposed on other similarly situated

defendants” in the same division of the same federal district court. Id. at 747.


       AFFIRMED.




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