                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0109n.06

                                               12-4547                                    FILED
                                                                                    Feb 07, 2014
                           UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


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

       Before:    DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge.                      Leavy Welch pleaded guilty to

distributing crack cocaine, possessing powder cocaine with the intent to distribute, and

maintaining a drug-involved premises. The district court sentenced him below the applicable

Guidelines range to 120 months= imprisonment. He now appeals his sentence, claiming that it

was procedurally and substantively unreasonable. In particular, he objects to the district court=s

determination of his criminal history category and his designation as a career offender. He also

claims that the district court failed to address adequately the sentencing factors set out in 18 U.S.C.

' 3553(a). For the reasons set out below, we find no reversible error and affirm.


                       FACTUAL AND PROCEDURAL BACKGROUND


       Welch was indicted in federal court on four drug-related charges: distribution of 53.6

grams of crack cocaine, distribution of 37.8 grams of crack cocaine, possession with intent to

distribute 60 grams of powder cocaine, and using/maintaining a drug-involved premises. Welch
12-4547
United States v. Welch

and the government reached a plea agreement under which Welch agreed to plead guilty to all four

counts in the indictment. The parties did not agree on a sentence or a sentencing range but did

agree that Welch=s base offense level was 26, unless Welch was classified as a career offender, in

which case they agreed that his base offense level would be 34. The parties also failed to agree on

Welch=s criminal history category but noted that, if Welch were classified as a career offender, a

criminal history category VI would automatically apply.


       Before Welch pleaded guilty, the district court ordered a pre-plea report, in which the

probation department indicated that Welch was a career offender and had 18 criminal history

points based on prior convictions. The report indicated that under the Guidelines, and in light of a

proposed three-point reduction for acceptance of responsibility, Welch should be sentenced at an

offense level of 31 with a criminal history category of VI, which would result in a Guidelines range

of 188-235 months.


       Welch submitted written objections to the presentence report and also filed a sentencing

memorandum. He contended that category VI over-represented his criminal history; that the

probation office had improperly assessed criminal history points for certain prior convictions,

thereby increasing his criminal history category from III to VI; and that he was improperly

designated as a career offender because his Ohio conviction did not meet the requirements for a

predicate felony. Welch also argued for a downward departure from the advisory range of

188-235 months and asked the court to consider the remorse he had shown for his past criminal

conduct, noting that he was responsible for his mother financially, that he suffered from addiction

to alcohol and drugs, and that he had a supportive family and community.      He claimed that even
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United States v. Welch

if the advisory range of 188-235 months were correct, he merited a downward departure because

many of his prior convictions were quite old and were for driving-under-suspension offenses,

unrelated to drugs. Thus, Welch argued, his criminal history computation did not accurately

reflect his past criminal conduct and was not indicative of future conduct. He asked the district

court to sentence him to a base offense level of 26, with a three-level reduction to 23 for

acceptance of responsibility, and to apply criminal history category III, for an advisory Guidelines

range of 57-71 months.


       Welch subsequently submitted character letters from various individuals in his community,

including his mother and aunt, a family friend, church leaders, a business owner who said he

would employ Welch upon his release, and his nephews. The letters discussed the trauma Welch

experienced when his older brother was murdered in August 2000, explained that Welch was

raising his brother=s children, noted the absence of a father figure in Welch=s life, and emphasized

the fact that his fiancée had recently given birth to their son. The materials also indicated that he

was active in his church. In response, the probation department addressed Welch=s objections to

the criminal history category and his designation as a career offender in its final presentence

report, confirming the earlier conclusion that Welch qualified as a career offender and that

category VI applied.


       The government also submitted a sentencing memorandum, taking the position that Welch

was properly designated a career offender based on his prior convictions and that his criminal

history category was properly scored as VI. However, the government conceded that there might

be factors to support a downward variance B specifically, the circumstances of Welch=s
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United States v. Welch

fourth-degree felony conviction in 2001 and the fact that Welch was properly viewed as a

relatively low-level, Aounce-type@ drug dealer. The government further conceded that Welch=s

driving offenses may have inappropriately yielded a criminal history category of VI. It was Aopen

to question,@ the government stated, whether Welch was the type of individual whom the

Sentencing Commission envisioned being sentenced under the career-offender provision.


       At sentencing, the district judge indicated that he had read and reviewed the government=s

and defense counsel=s sentencing memoranda. Initially, the district judge asked defense counsel

whether counsel was Aobjecting to the criminal history calculation or [] saying it overrepresents?@

Defense counsel responded, AJudge, the objection I believe specifically goes to the

over-representation of his criminal history.@ The district judge noted that Welch had 18 criminal

history points and asked, AYou=re not challenging any of the points?@ Defense counsel responded,

ANo.@ The district judge then asked, AWell, then am I correct that there are no objections to the

report?@ Defense counsel answered, AThat=s correct, Your Honor.@


       The district court then explained that it must begin its sentencing calculations at a base

offense level of 26 and accepted the government=s recommendation for a three-level downward

departure for acceptance of responsibility. However, because Welch was a career offender, the

district court stated that his base offense level must jump to 34. Considering the downward

departure to offense level 31 for acceptance of responsibility and Welch=s criminal history

category of VI, the district court identified Aa career offender range@ of 188-235 months, and a

Astraight guideline range@ of 92-115 months. The district judge then asked both parties, AAnd do

we agree those are the two ranges, 92 to 115 on straight Guidelines, and the 188 to 235 as career
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United States v. Welch

offender?@ Defense counsel responded, AThat=s correct, Your Honor.@ The government agreed,

stating, AThat=s correct on behalf of the government.@ The district judge then gave both attorneys

and Welch an opportunity to speak.


        Defense counsel said, AJudge, you=ve indicated to and looked at my sentencing

memorandum and the attachments to my memorandum which w[ere] filed later on. . . . [A]nd I

believe I accurately stated our position in my sentencing memorandum.@ Counsel then argued

that the career-offender range was unduly harsh given Welch=s prior convictions and the fact that

Welch went to prison for only one of his predicate felonies. Counsel pointed out that many of

Welch=s criminal history points were acquired when he was 19 years old and were for driving

offenses unrelated to drugs. Counsel referred to Welch=s loving and supportive family and stated

that, if the district judge declined to apply the base offense level of 26, he would ask the district

judge to sentence Welch within the guideline range of 92-115 months.


        During allocution, Welch apologized to his family, many of whom were in the courtroom,

stated that he had accepted responsibility for his bad choices, and explained that his brother=s

murder had had a significantly negative effect on him. Since his brother was killed, Welch said,

he had taken care of his niece and nephews, and after he was arrested and detained, those children

had been getting in trouble and doing less well in school. Welch also told the district court that

within three weeks of his being arrested, his fiancée told him that she was pregnant Aand that [it]

just shook the ground for me.@ He said that he wanted his son Ato know that he does have a father

that he can look up to that does love him. . . . He is my fuel for me to turn my life around, for me

to do the right thing.@
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United States v. Welch

        Welch also explained that he had a plan to change his life, telling the court that he had

completed a drug abuse program in jail and wanted to attend another 500-hour drug program while

incarcerated. He said that he was pursuing an associate=s degree in business management and

planned to continue his 12-step program with Alcoholics Anonymous and Narcotics Anonymous.

He noted that he had a church mentor in his home community and a job awaiting him with

Flashback Studios when he was released from custody. Finally, he told the court that his family

had Aa long history of fathers not being in our lives@ and that he wanted to Abreak the mold@ by

being present in his son=s life.


        The district judge indicated that he had reviewed the parties= memoranda and the

presentence report and had listened to Welch=s statement. He noted that he was required to learn

everything he could about the crimes of conviction, calculate the advisory range, and consider the

other factors set out in the sentencing statute, so that the sentence imposed would be no longer than

necessary to accomplish the statutory purposes of sentencing, A[p]unishment, deterrence,

protecting the community, and rehabilitation.@ The district judge expressed his misgivings about

the rigidity of career-offender status, indicating that Mr. Welch did not Aseem to meet the profile.@

Nonetheless, he felt bound to consider the Guidelines range and give it some weight, while

acknowledging that the Guidelines were advisory only. Ultimately, he followed the practice he

had applied in similar cases and imposed a sentence Abetween what the straight Guidelines

sentence would be and what the career offender sentence would be, because I find that that=s

sufficient but not greater than necessary.@



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United States v. Welch

          Accordingly, the district court sentenced Welch at offense level 26 and criminal history

category VI, which yielded a range of 120-150 months. The district judge concluded that a

sentence of 120 months, at the low end of that range, was appropriate. He noted that 120 months

Ajust happens to be just a touch over the high end of the straight guideline range of 92 to 115, so

that=s another measure of appropriateness.@ The district judge asked whether either counsel had

any objections to the sentence. Both attorneys responded, ANo.@ The district court gave each

party one last opportunity to make statements on the record, which they declined.


                                           DISCUSSION


          We review the district court=s interpretation of the sentencing Guidelines de novo and its

sentencing determination under an abuse-of-discretion standard, asking whether the sentence was

procedurally and substantively reasonable. United States v. Baker, 559 F.3d 443, 448 (6th Cir.

2009); see also Gall v. United States, 552 U.S. 38, 51 (2007). Here, Welch challenges both the

procedural and substantive reasonableness of his sentence, raising a number of objections B

primarily to the district court=s determination of his criminal history category and career-offender

status.


          A defendant merits career-offender status if, among other things, he has two qualifying,

predicate felony convictions. U.S.S.G. ' 4B1.1(a). A conviction for a controlled-substance

offense qualifies as a prior felony conviction for career-offender purposes if the offense is

punishable by a term of imprisonment exceeding one year. Id.; see also id. at § 4B1.2 (b). In this

case, Welch challenges the sentencing court=s reliance on one of his prior convictions:           a

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United States v. Welch

fourth-degree felony offense for attempted preparation of drugs for sale. Welch claims that Ohio

law required the state court to impose the minimum term of six months= imprisonment unless it

made certain findings, which, Welch contends, the Ohio state court did not make when sentencing

Welch for that offense. However, he does not offer any evidence to support that claim. Nor does

he contest the fact that, under Ohio law, a fourth-degree felony is punishable by a term of

imprisonment between six and 18 months, Ohio Rev. Code Ann. ' 2929.14(A)(4).                Hence,

pursuant to the Guidelines, the conviction qualifies as a predicate felony for career-offender

purposes regardless of the actual sentence imposed. See U.S.S.G. ' 4B1.2. We thus conclude

that the district court properly determined that Welch was a career offender.


       Welch also argues that the district court erred in calculating his criminal history category,

contending that he should have been sentenced at category III, not category VI. However, an

individual who is deemed a career offender is automatically scored as having a criminal history

category VI. U.S.S.G. ' 4B1.1(b) (AA career offender=s criminal history category in every case

under this subsection shall be Category VI.@). As a result, even if Welch were correct that the

presentence investigation report improperly assessed criminal history points for some of his past

offenses, because he is properly classified as a career offender, his criminal history category is

automatically VI.


       Welch next argues — equally unpersuasively — that the district court improperly viewed

the Guidelines as mandatory. Although a sentencing judge must not treat the Guidelines as

mandatory, the district judge nonetheless must accurately calculate the applicable range. Gall,

552 U.S. at 49; United States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008) (ADistrict courts, as a
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United States v. Welch

matter of process, must properly calculate the Guidelines range.@).            Welch cherry-picks

statements the district judge made at sentencing to support his assertion that the district judge

viewed the Guidelines as mandatory. In fact, when read in its entirety, the sentencing transcript

clearly shows that the district judge calculated the Guidelines range as he was required to do and

then treated that range as advisory.


       Nor is there any support in the record for Welch=s contention that the district court did not

address his claim that a criminal history category of VI and career-offender status over-represented

his criminal record. In fact, the district court agreed with Welch that his status as a career

offender over-represented his criminal history and, accordingly, considered what his sentence

would be if he were not classified as a career-offender, ultimately sentencing him below the

Guidelines range for career offenders convicted of the offenses to which he had pleaded guilty.

The transcript of the sentencing hearing indicates the district court=s concern, expressed in this

statement: AI=ve always felt the problem with career offender is that it=s like an on and off switch.

And it in my view should be more calibrated because there are some people like you, Mr. Welch,

who technically score as career offender but don=t seem to meet the profile.@ The district court

then noted that it was required to Agive some weight to the career offender designation@ but

ultimately sentenced Welch below the Guidelines range for a career offender with a criminal

history category of VI, based on the precise analysis that Welch now claims was not made.


       Just as pointless is Welch=s claim that the district court erred in assessing criminal history

points for convictions that occurred outside the 10-year limit provided in U.S.S.G. ' 4A1.2(e)(2).

Because Welch was sentenced as a career offender, however, his criminal history category is
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United States v. Welch

automatically VI, regardless of how his criminal history category would otherwise be calculated.

Id. At § 4B1.1 (b). Thus, we need not determine whether the district court properly calculated the

criminal history category that would have applied if Welch were not a career offender.


       Welch also claims error in the district court=s failure to address each of his arguments for a

downward variance specifically, including his personal history and family ties, and the court=s

failure to explain the weight given to each of the ' 3553(a) factors. Because Welch failed to raise

these objections at the hearing, we review them for plain error only. See United States v. Bostic,

371 F.3d 865, 872-73 (6th Cir. 2004).


       Here, again, Welch=s argument fails, because there was no error B plain or otherwise. The

district court=s explanation of Welch=s sentence satisfied ' 3553(a) because it made Aclear that [it]

considered the required factors.@ United States v. Washington, 147 F.3d 490, 491 (6th Cir. 1998)

(quoting United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) (stating that there is no need for

Aritualistic incantation@ of the ' 3553(a) factors)); see also 18 U.S.C. ' 3553(a) (stating the factors

a court Ashall consider@ in determining an appropriate sentence). Congress did not intend to

require sentencing judges to Agive the reasons for rejecting any and all arguments by the parties for

alternative sentences.@ United States v. Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en banc). In

this case, the district court=s explanation for the sentence imposed reflected full consideration of

the ' 3553(a) factors and highlighted the defendant=s specific arguments for leniency. In sum, we

conclude that the sentence imposed was not procedurally unreasonable.




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United States v. Welch

       Nor do we find that the sentence was substantively unreasonable, a question we review

under an abuse-of-discretion standard. United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007);

see also Gall, 552 U.S. at 51. AA sentence may be substantively unreasonable if the district court

selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider

pertinent ' 3553(a) factors or gives an unreasonable amount of weight to any [one] factor.@

United States v. Vowell, 516 F.3d 503, 510 (6th Cir. 2008) (internal citations, quotations, and

alterations omitted). A substantively reasonable sentence is Aproportionate to the seriousness of

the circumstances of the offense and offender, and sufficient but not greater than necessary, to

comply with the purposes of ' 3553(a).@ Id. at 512 (internal citations and quotations omitted).

Here, Welch claims that the district court imposed an arbitrary sentence, failed to consider the '

3553(a) factors, and gave undue weight to Welch=s criminal history. As with Welch=s procedural

claims, we find none of these persuasive.


       For example, Welch claims that the district court=s decision to sentence him at offense level

26 was arbitrary. But, level 26 was the agreed-upon base offense level in the parties= plea

agreement and also the offense level for which defense counsel advocated in its objection to the

presentence investigation report. Moreover, as already discussed, the district court adequately

addressed the ' 3553(a) factors. Finally, the district court did not give undue weight to Welch=s

criminal history. If anything, the weight the district court gave to Welch=s criminal history worked

in Welch=s favor and led to a sentence below the Guidelines range applicable to a career offender

sentenced at offense level 31. Thus, Welch has failed to demonstrate that his sentence was

substantively unreasonable.

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                                       CONCLUSION


       For the reasons set out above, we AFFIRM the judgment of the district court.




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