                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0478n.06

                                           No. 09–1409                                    FILED
                                                                                      Aug 05, 2010
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                         )
                                                  )       ON REVIEW FROM THE
       Plaintiff-Appellee,                        )       UNITED STATES DISTRICT
                                                  )       COURT FOR THE WESTERN
v.                                                )       DISTRICT OF MICHIGAN
                                                  )       SOUTHERN DIVISION
JEREMY ADAMS,                                     )
                                                  )
      Defendant-Appellant.                        )                 OPINION
______________________________                    )



Before: GILMAN and WHITE, Circuit Judges; and WATSON, District Judge.*

       MICHAEL H. WATSON, District Judge. Defendant-Appellant, Jeremy Adams, pleaded

guilty to a charge of possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§§ 860a and 841(a)(1). The District Court for the Western District of Michigan sentenced him to

an above-Guidelines sentence of sixty months, which the district court ordered to run consecutively

to his state incarceration for possession of methamphetamine as a habitual offender, second offense.

At the sentencing hearing, Adams challenged the application of an upward variance and the length

of his sentence. Adams now appeals the substantive reasonableness of the sentence. For the

following reasons, we AFFIRM the district court’s sentence.




       *
         The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
                                                 I.

       On April 3, 2008, Michigan Child Protective Services informed the Kalamazoo Valley

Enforcement Team that a four-year old child was recently hospitalized for breathing difficulties that

possibly stemmed from exposure to a methamphetamine laboratory at the child’s residence, 1015

Chicago Avenue, Kalamazoo, Michigan (the “Residence”). In response, officers went to the

Residence where, outside the front door, they found a duffle bag containing a “one pot” reactor

vessel used to produce methamphetamine. The child’s grandparents arrived at the home at this time.

The grandmother stated that she and her husband lived at the Residence with her daughter, Ms.

Phillips, Ms. Phillips’ two children aged four and six, and her daughter’s boyfriend, Jeremy Adams.1

The grandmother suspected Adams was making methamphetamine in the Residence; she did not

notify the police because she feared that Adams would burn down the Residence in retaliation or that

the children would be taken.

       The grandmother permitted police to search the residence. When the police entered, the

Residence smelled strongly of ammonia. They found Ms. Phillips sleeping face down on her bed

atop coffee filters and plastic bottles with holes in the lids. These items, and the gallon bottle of

ammonia found next to the bed, are often used to manufacture methamphetamine. Also in the room

was a child’s fishing pole that later tested positive for methamphetamine residue. When officers

interviewed Ms. Phillips, she stated that Adams, who was not home at the time, had manufactured

methamphetamine in the Residence earlier in the day.




       1
        Some evidence suggests the four-year old may have been living with her paternal
grandmother at the time of the offense, but it is not disputed that the six-year old lived at the
Residence at the time of the offense.

                                                 2
       The children’s father, Jay Whipple, arrived during the interview and informed the police that

he believed the four-year old child’s breathing difficulties stemmed from the manufacture of

methamphetamine in the Residence. Whipple also told the police that the six-year old found a

grocery bag containing drain cleaner and salt at the Residence, and Whipple believed that these were

used to manufacture methamphetamine.

       Adams was later arrested. He took responsibility for almost all the items seized from the

Residence, including the duffle bag containing the “one pot” reactor. He stated that he made

methamphetamine for not only his use, but also to give to Ms. Phillips and to sell to her father.

Though Adams admitted to the manufacture of methamphetamine, he said that he mostly

manufactured it at his friend’s house, and only once or twice manufactured it in a car parked in front

of the Residence.

       As a result of this investigation, Adams was charged on April 24, 2008 by Criminal

Complaint for the knowing and intentional attempt to manufacture methamphetamine, in violation

of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). He was arrested May 25, 2008, on a local warrant

issued for a separate incident. He pleaded guilty to a state charge of possession of methamphetamine

for a January 2008 incident. As a habitual offender, he was sentenced by the state court to a period

of incarceration for two to fifteen years. Then, on June 4, 2008, as a result of the April 3, 2008

incident, Adams was indicted by the federal government on one count of manufacturing

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and one count of

manufacturing methamphetamine on premises where an individual under the age of eighteen was

present or resided, in violation of 21 U.S.C. §§ 860a and 841(a)(1).




                                                  3
       After his federal indictment, Adams proffered information to the government. Though Ms.

Phillips claimed Adams manufactured methamphetamine in their bedroom, Adams denied it; instead,

he admitted to manufacturing methamphetamine at a friend’s house and “gassing off”2 in the car in

the front yard of the Residence several times. He stated that after making methamphetamine at his

friend’s house, he would store the equipment and unused ingredients in the bedroom he shared with

Ms. Phillips. He admitted to making one to two grams of methamphetamine two or three times per

week from October 2006 to April 2008.

       Due to conflicting evidence from Ms. Phillips and Adams regarding the location of the

manufacture of methamphetamine, Adams was permitted to plead guilty to a superseding

information charging him not with the manufacture of methamphetamine, but instead with

possession of methamphetamine with intent to distribute on premises where an individual under the

age of eighteen was present or resided, in violation of 21 U.S.C. §§ 860a and 841(a)(1). Adams

pleaded guilty on November 14, 2008.         At that time, Adams admitted that he possessed

methamphetamine in a “one pot” bottle on the porch of the Residence, that Ms. Phillips’s seven-year

old3 was residing at the Residence at the time, and that he intended to distribute the

methamphetamine. The plea was accepted.

       In anticipation of Adams’ sentencing, the Probation Office prepared a Presentence Report,

and in so doing, calculated the applicable advisory United States Sentencing Guidelines Manual

(“U.S.S.G.” or “Guidelines”) parameters. The Probation Office calculated Adams’ total offense

level as twelve.     This included a two-level enhancement applied pursuant to U.S.S.G. §


       2
           “Gassing off” is one stage in the manufacture of methamphetamine.
       3
           Ms. Phillips’ six-year old presumably had a birthday between April and November.

                                                4
2D1.1(b)(10)(B) to account for the presence of a child at the Residence. The Probation Office

calculated Adams’ criminal history score of twenty-three points and placed him in Criminal History

Category VI. The Probation Officer, however, suggested that although Category VI is the most

serious criminal history category, it under-represented the seriousness of Adams’ criminal history.

Adams’ numerous prior offenses and the ineffectiveness of any prior resulting sentences suggested

Adams was very likely to commit future crimes.

       Criminal History Category VI is applicable to all defendants with thirteen or more criminal

history points. Adams had a criminal history score of twenty-three. Adams’ lengthy and active

criminal history began at age seventeen and culminated in the instant offense. In the intermediate

years, Adams was convicted of many charges related to or involving alcohol, marijuana, and

methamphetamine. Due to multiple methamphetamine-related charges, Adams was classified as a

habitual offender. Although Adams’ offenses initially resulted in twenty-four criminal history

points, twenty-two other offenses were not counted in reaching that number. The score was further

reduced to twenty-one points pursuant to U.S.S.G. § 4A1.1(c), which provides that only four one-

point convictions are scored. This score of twenty-one points was increased by two points, pursuant

to U.S.S.G. § 4A1.1(e), because the instant offense was committed less than two years from Adams’

release from custody on January 7, 2007, resulting in a final criminal history score of twenty-three.

       Because the Probation Officer believed that Criminal History Category VI under-represented

Adams’ likelihood to commit future crimes and criminal history, she recommended a five-level

increase in the total offense level pursuant to U.S.S.G. § 4A1.3. This increase would result in a

Guidelines sentence range of 51–63 months. The Probation Office further recommended an above-

Guidelines sentence of sixty months to run consecutively to Adams’ state sentence.


                                                 5
        The Government also supported an upward deviation based on Adams’ considerable criminal

history and the fact that the two-level enhancement pursuant to U.S.S.G § 4A1.1(e) increased the

sentence by only seven months. Also, the Government noted that the offense level was based only

on the amount of methamphetamine residue left in the “one pot” bottle, rather than the amount of

methamphetamine actually produced. Additionally, the Government submitted that the educational

or vocational training and the mental health/substance-abuse counseling Adams needed would take

longer to complete than the Guidelines range of 30–37 months. The Government recommended that

if the district court concluded that an upward departure pursuant to U.S.S.G. § 4A1.3 was not

warranted then the court alternatively employ an upward variance from the Guidelines range.

        Adams was sentenced March 30, 2009. The district court, instead of adopting the Probation

Office’s recommendation to depart pursuant to U.S.S.G. § 4A1.3, determined that a variance from

the advisory Guidelines range of 30–37 months was appropriate. The court imposed a sentence of

sixty months to run consecutively to Adams’ state sentence. In making that decision, the court

considered Adams’ criminal history, his history of manufacturing methamphetamine, the presence

of a child at the Residence, Adams’ need for substance-abuse counseling, and the need to protect the

public from his additional crimes. Adams now challenges the substantive reasonableness of his

sentence.

                                                   II.

A.      Legal Standards

        We apply an abuse-of-discretion standard to determine if the sentence was substantively

unreasonable. Gall v. United States, 552 U.S. 38, 45, 50 (2007). In so doing, we must “keep in mind

that ‘. . . appellate courts must respect the role of district courts and stop substituting their judgment


                                                    6
for that of those courts on the front line.’” United States v. Christman, 607 F.3d 1110, 1117 (6th Cir.

2010) (quoting United States v. Phinazee, 515 F.3d 511, 521 (6th Cir. 2008)) (alterations in

Christman).

        A sentence is substantively unreasonable where “the district court selects a sentence

arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing factors,

or gives an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514

F.3d 508, 520 (6th Cir. 2008). “While a sentence within the Guidelines is presumed to be

reasonable, a sentence outside the Guidelines range is not presumed unreasonable.” Christman, 607

F.3d at 1118 (citing United States v. Houston, 529 F.3d 743, 755 (6th Cir. 2008)). To determine

whether the sentence is substantively reasonable, we must consider “the totality of the circumstances,

including the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51. A challenge

to the weight afforded to the § 3553(a) factors presents a situation in which the appellant argues that

“‘a district court examine[d] a relevant factor but, despite rigorous analysis, [gave] unreasonable

weight to that factor by failing to examine the full spectrum of information on the record before it

relating to that factor.’” United States v. Tristan-Madrigal, 601 F.3d 629, 638 (6th Cir. 2010)

(quoting United States v. Hughes, 283 F. App’x 345, 351 (6th Cir. 2008)).

B.      Substantive Reasonableness

        In this case, the district court considered a number of relevant § 3553(a) factors in creating

a sentence that was “sufficient but not greater than necessary to comply with the purposes of Section

3553(a), the proportionality analysis,” and that reflected “both the specific offenses and the

individual offender.” (Sentencing Tr. 18:13–17.) The district court considered the nature of the

offense and stated that the presence of a child at the Residence “ratchets up the seriousness of the


                                                   7
offense[.]” (Id. at 19:14–15.) The district court considered the nature of Defendant, finding relevant

that Adams kept a drug he knew was dangerous at the Residence that he shared with a child, the

increasingly serious pattern of prior offenses, Adams’ upbringing, and his multiple serious substance

abuse problems. The district court indicated that it found the need to provide punishment and to

promote respect for the law to be “quite important” because Adams’ recent incarceration on his state

conviction appeared to have “finally gotten his attention.” (Id. at 21:14–22.) The district court also

determined that Adams appeared to be “at very high risk to [reoffend] without some serious

intervention aimed at helping him to overcome the problems that he has with substance abuse.” (Id.

at 22:1–6.) As such, the district court was mindful of the need to protect the public from Adams’

possible future crimes involving the use and manufacture of methamphetamine. Finally, the district

court considered the need to provide necessary medical, educational, and correctional treatment to

Adams; the district court found this to be “maybe even the most important” factor. (Id. at 22:12–18.)

       The district court found that “all five of those factors [fell] on the high end of the scale” (Id.

at 23:5–7), and therefore, the advisory Guidelines range did not sufficiently reflect the § 3553(a)

considerations. (Id. at 23:5.) Adams suggests the district court placed unreasonable weight on three

factors: Adams’ prior criminal history, the presence of a child at the Residence, and the need to

provide Adams with medical, education, and corrections treatment. Adams argues that the district

court’s stated reasons for the variance “are not sufficiently compelling to justify such a steep degree

of variance, neither individually nor in aggregate.” (Br. for Def.-Appellant 17.)

       1.      Prior criminal offenses

       Adams asserts numerous arguments to show the district court attributed an unreasonable

amount of weight to his prior criminal offenses. To begin, Adams cites U.S.S.G. § 4A1.3


                                                   8
Commentary Note 2(B), which states that departures from Criminal History Category VI are

appropriate for

       an egregious, serious criminal record in which even the guideline range for Criminal
       History Category VI is not adequate to reflect the seriousness of the defendant’s
       criminal history . . . . In determining whether an upward departure from Criminal
       History Category VI is warranted, the court should consider that the nature of prior
       offenses rather than simply their number is often more indicative of the seriousness
       of the defendant’s criminal record.

U.S. SENTENCING GUIDELINES MANUAL § 4A1.3 cmt. 2(B) (2008). Adams argues that although his

past offenses are numerous, they do not reveal him to be a violent offender, and they are neither

egregious nor as serious as crimes typically seen in Criminal History Category VI.4

       This argument fails because the district court applied a variance, rather than a departure, and

“[a]lthough the standard for an upward departure under the Guidelines may be helpful in determining

reasonableness, a district court does not necessarily abuse its discretion in considering criminal

history that would not otherwise support a [U.S.S.G.] § 4A1.3 departure when that criminal history

is directly relevant to the § 3553(a) factors.” Tristan-Madrigal, 601 F.3d at 635. Indeed, Adams

admits the district court is not, in applying a variance, bound by Commentary to the advisory

Guidelines. Variance propriety is not based solely on the Guidelines, but rather on the consideration

of the factors delineated in 18 U.S.C. § 3553(a).

       Whereas § 4A1.3(a)(1) permits an upward departure only where the defendant’s
       criminal history category “substantially under-represents the seriousness of the
       defendant’s criminal history or the likelihood that the defendant will commit other
       crimes,” the court’s authority under § 3553(a) more broadly permits consideration of
       “the nature and circumstances of the offense and the history and characteristics of the
       defendant,” as well as “the need for the sentence imposed . . . to protect the public


       4
        Adams suggests the district court agreed with this assertion, but actually the district court
found that although some of the offenses were minor, there was a pattern of increasing seriousness,
and the minor crimes perhaps pointed to more serious future offenses.

                                                    9
       from further crimes of the defendant.” A district court always can impose an above-
       Guidelines sentence so long as it is reasonable in light of the factors set forth in 18
       U.S.C. § 3553(a). . . . The only requirement is that the court determine, “in light of
       all the facts and circumstances of the particular case before it, whether the range in
       question is appropriate to the case.”

United States v. Herrera-Zuniga, 571 F.3d 568, 589–90 (6th Cir. 2009) (internal citations omitted).

Even so, if the district court placed an unreasonable amount of weight on any pertinent factor, the

sentence would be substantively unreasonable. Conatser, 514 F.3d at 520.

       Next, Adams makes just such an argument. He asserts that although he had numerous

convictions, his offenses were non-violent and not as serious as those commonly found in Category

VI, thus the applicable Guidelines range adequately accounts for his past criminal behavior, making

the district court’s upward variance unreasonable.

       The commentary to the Guidelines, although not controlling, is helpful in determining

reasonableness. See Tristan-Madrigal, 601 F.3d at 635. It directs the district court to consider

whether “reliable information indicates the criminal history does not adequately reflect the

seriousness of the defendant’s criminal history or likelihood of recidivism.” U.S. SENTENCING

GUIDELINES MANUAL § 4A1.3 cmt. background (2008). The district court, citing the steady stream

of increasingly serious offenses, almost all of which involved the use of alcohol, marijuana, or

methamphetamine, found Adams presented a high risk of recidivism. Furthermore, the district court

noted that the threshold for Category VI is thirteen points, and Adams scored ten points more than

that amount without the attribution of points to all of Adams’ convictions. Given the high number

of increasingly serious convictions, and the fact that alcohol, marijuana, or methamphetamine were

involved in many of the convictions, it was not unreasonable for the district court to determine, as




                                                 10
it did, that Adams was “spiraling out of control” (Sentencing Tr. 11:9–10), thereby presenting a high

risk of recidivism. Thus, the district court did not attribute unreasonable weight to this factor.

       2.      Presence of a child at the Residence

       Adams argues that the variance imposed by the district court was substantively unreasonable

because the district court afforded too much weight to the presence of a child at the Residence.

Adams asserts that because his calculated total offense level already included a two-level increase

for the presence of a child at the Residence, and his crime was “not particularly egregious[,]” it was

inappropriate for the district court to give significant weight to this factor. This argument fails,

however, because a court does not attach unreasonable weight to a factor merely because it considers

it both under the advisory Guidelines and in connection with the § 3553(a) factors. See United States

v. Hope, 167 F. App’x 531, 534 (6th Cir. 2006) (rejecting a substantive reasonableness challenge to

a sentence based on invalidity of “double counting” the threat of violence presented by defendant

in both the mandatory minimum sentence and the § 3553(a) likelihood of recidivism and danger to

public factors).

       Moreover, Adams asserts that his crime was not egregious, and takes issue with the fact that

the district court did not explain why this case differs from mainstream child-presence cases, thereby

warranting a sentence greater than that contemplated by the Guidelines. However, although Adams

asserts that his behavior was not egregious, the facts of this case are disturbing. Here, Adams was

not merely storing methamphetamine at the child’s residence, he also stored the ingredients and

equipment used to make methamphetamine at the Residence, and methamphetamine residue was

found on a child’s toy in the Residence. Adams admitted the “one pot” reactor was sitting next to

the door the child used to enter and exit the Residence on a daily basis. Furthermore, the children


                                                 11
may have had access to the ingredients used to manufacture methamphetamine. The district court

determined that the drug was particularly dangerous, and the children were “actually exposed to the

drug and/or its residue.” (Sentencing Tr. 19:13–14.) The district court recognized that Adams

consistently stated that he never manufactured methamphetamine in the Residence; however, it also

noted that there were a number of items present at the Residence that were consistent with the

manufacture of methamphetamine therein. These items included the “one pot” cooker and a gallon

bottle of ammonia.

       The district court stated that the child’s presence was the factor that increased the seriousness

of the offense and made the case “stand out[.]” (Id. at 19:5.) It was not unreasonable for the district

court to conclude that the actual presence of methamphetamine residue on the toys and the children’s

exposure to the drug or its residue made this case more serious than a case involving the drugs that

were stored in a residence without resultant exposure to children residing therein. The district court

did not give unreasonable weight to this factor.

       3.      Provision of medical, educational, and correctional treatment

       Adams also argues the district court afforded too much weight to the time needed to provide

him with medical, educational, and corrections treatment. Adams asserts that this factor does not

warrant a higher sentence because the drug program in which he will enroll lasts only eighteen

months, a time period that does not exceed a within-Guidelines sentence. But Adams does not

suggest that the district court’s variance was imposed solely to enable Adams to receive substance-

abuse treatment. Cf. United States v. Yopp, 453 F.3d 770, 774 (6th Cir. 2006) (holding that where

the sole purpose of sentence was to provide mental health and substance-abuse treatment, it was

substantively unreasonable to sentence defendant to twenty-four months because the 500-hour drug


                                                   12
treatment program could be finished in nine months). Instead, Adams argues that the “sentence

should not be increased based on his need for [medical and educational] treatment.” (Br. for Def.-

Appellant 21.)

       This argument fails because Adams’

       argument that the drug-treatment program does not take [sixty] months to complete
       translates into an argument that his sentence should be only as long as the drug-
       treatment program takes to fulfill. The district court’s concerns with the public’s
       protection and with [Adams’] criminal record are not adequately addressed by a five-
       hundred hour drug treatment program.

United States v. Bailey, 488 F.3d 363, 369 (6th Cir. 2007).

       The district court placed great weight on Adams’ need for substance-abuse treatment and

vocational training; it stated that it intended the sentence to provide “opportunities to improve

[Adams’] life and to break this cycle that [he has] been in[.]” (Sentencing Tr. 26:6–8.) However,

as in Bailey, the district court also cited numerous other § 3553(a) factors that suggested additional

incarceration was necessary. Accordingly, Adams has not provided us with any evidence that the

district court “‘fail[ed] to examine the full spectrum of information on the record before it relating

to that factor.’” Tristan-Madrigal, 601 F.3d at 638 (quoting Hughes, 283 F. App’x at 351). Adams

has not shown that the district court afforded an unreasonable amount of weight to this factor.

C.     Consideration of the factors in aggregate

       Although it is true that major variances must be supported by significant justifications, Gall,

552 U.S. at 50, in crafting Adams’ sentence the district court carefully and comprehensively

considered the totality of the circumstances, the recommended Guidelines sentence, and all relevant

§ 3553(a) factors. After this thorough analysis, the district court found that a sentence within the

Guidelines range would not be appropriate. The district court found that because children were


                                                 13
involved, this was a serious offense, and because Adams lacked direction and control, he was a

serious offender; indeed, the district court found that all factors considered were quite serious. The

district court did not, as Adams suggests, rely predominantly on only three factors. We “must give

due deference to the district court’s decision that the § 3553(a) factors, on the whole, justify the

extent of the variance.” Gall, 552 U.S. at 51. Adams requests that we reevaluate the factors

considered by the district court and weigh them differently, but due to the significant deference owed

to the district court in this situation, that is improper. Because the district court did not place

unreasonable weight on the factors considered in this case, the sentence is not substantively

unreasonable.

                                                 III.

       For the above reasons, we AFFIRM the sentence of the district court.




                                                 14
