                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0474n.06

                                            No. 07-4405
                                                                                          FILED
                           UNITED STATES COURT OF APPEALS                              Jul 09, 2009
                                FOR THE SIXTH CIRCUIT                           LEONARD GREEN, Clerk


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




       Before: GILMAN and McKEAGUE, Circuit Judges; BARRETT, District Judge.*

       BARRETT, District Judge. Scott Kollar (“Kollar”) appeals the district court’s judgment

sentencing him to a below-guidelines sentence of 169 months’ imprisonment following his guilty

plea and conviction of conspiracy to possess with the intent to distribute 500 grams or more of

cocaine in violation of 21 U.S.C. §§ 841 and 846. Kollar argues that the district court erred when

it refused to disregard Kollar’s career offender status, when it denied his request for a two-point

downward departure in offense level for his minor role in the drug conspiracy, and when it denied

his request for a one-level downward departure in criminal history because category VI substantially

over-represented the seriousness of his criminal history. In addition, Kollar argues that his sentence

is unreasonable. For the reasons that follow, we affirm.

       *
        The Honorable Michael R. Barrett, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 07-4405
United States of America v. Kollar

                                                  I.

       Beginning in July 2006, Cleveland Police became aware, from a confidential source, that

Henry Hernandez was involved in heavy cocaine trafficking. Hernandez was the appellant’s co-

defendant. In October 2006, Cleveland Police learned that Kollar was one of Hernandez’s associates

that assisted him with his drug trafficking.

       Hernandez arranged a cocaine deal with the confidential source, which took place on or about

March 8, 2007. Kollar and Hernandez met the confidential source, who gave Hernandez $900 for

cocaine that was to be delivered later. The next day, Kollar delivered the cocaine to the confidential

source, who then gave it to an undercover law enforcement agent named “Bobby” who had

accompanied him. Kollar then informed Bobby that he could deal with him directly for future

transactions and offered a price of $875 per ounce of cocaine. Kollar then provided Bobby with his

phone number. A few days later, Bobby contacted Kollar to arrange another sale. Bobby met Kollar

at Kollar’s apartment, where Kollar provided 40 grams of cocaine to Bobby in return for $1,320.

       Law enforcement then executed a search warrant for Kollar’s apartment, apartment #7.

Kollar was not present. However, the occupants told the officers that Kollar was in another

apartment in the same building. Law enforcement began surveillance outside the other apartments

in the building and observed Hernandez leaving apartment #8. Kollar was observed inside that same

apartment. When a search warrant was later executed on apartment #8, a hydraulic press used to

repackage cocaine was seen in plain view. Approximately 470 grams of cocaine, the hydraulic

press, and items used for cutting cocaine were seized. Kollar admitted that he and Hernandez would

open the packages of cocaine, add a cutting agent to the cocaine, and repackage it for distribution.

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No. 07-4405
United States of America v. Kollar

However, Kollar was not in possession of any of the marked money used by Bobby to purchase the

cocaine. Most of that money was found in Hernandez’s possession.

       On April 11, 2007, a federal grand jury in the Northern District of Ohio returned an

indictment charging Scott Kollar and a co-defendant, Henry Hernandez, with conspiracy to possess

with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), 21

U.S.C. § 841 (b)(1)(B), and 21 U.S.C. § 846 (Count 1), as well as possessing with intent to distribute

cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(c) (Count 4). Kollar was

also charged with two counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(c) (Counts 2 and 3).

       On June 8, 2007, the government filed an information, under 21 U.S.C. § 851, notifying

Kollar of its intent to rely on a prior conviction to enhance the applicable penalty provisions under

21 U.S.C. § 841(b). On June 11, 2007, Kollar pleaded guilty to Count 1 of the indictment, pursuant

to a written plea agreement with the government containing a limited appeal waiver, in exchange for

a dismissal of the other three counts. Kollar signed the plea agreement containing the above factual

basis and an appellate waiver provision. During the plea colloquy, Kollar confirmed that he signed

the agreement and initialed each page. The waiver provision of the plea agreement did not

specifically preserve Kollar’s right to challenge the district court’s determination about Kollar’s

career offender status and a minor role in the offense reduction; however, at the change of plea

hearing, the parties agreed that Kollar could appeal those issues. The plea agreement was modified

to reflect this agreement. During the plea colloquy, Kollar knowingly and voluntarily waived his

appellate rights except the right to appeal: (a) a sentence above the statutory maximum or in excess

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No. 07-4405
United States of America v. Kollar

of the maximum sentencing range under the Guidelines, or (b) the court’s determination about

Kollar’s career offender status, minor role in the offense reduction, prosecutorial misconduct or

ineffective assistance of counsel. The district court accepted Kollar’s plea and found him guilty on

count one.

       On October 1, 2007, Kollar was sentenced to 169 months’ imprisonment, followed by five

years of supervised release and ordered to pay a $100 special assessment. Pursuant to the

government’s recommendation, the court also dismissed the remaining counts against Kollar. The

district court issued its judgment on October 17, 2007. This appeal followed.

                                                  II.

       Career Offender Status

       “In reviewing a district court’s application of the Sentencing Guidelines, this Court will

‘accept the findings of fact of the district court unless they are clearly erroneous and [will] give due

deference to the district court’s application of the Guidelines to the facts.’” United States v. Moon,

513 F.3d 527, 539-40 (6th Cir.), cert. denied, 128 S. Ct. 2493 (2008) (quoting United States v.

Williams, 355 F.3d 893, 897-98 (6th Cir. 2003)); 18 U.S.C. § 3742(e). “A factual finding is clearly

erroneous ‘when the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.’” Moon, 513 F.3d at 539-40 (quoting Tran v.

Gonzales, 447 F.3d 937, 943 (6th Cir. 2006)). This Court reviews the legal conclusions regarding

the Sentencing Guidelines de novo. Id.

       Here, there are no factual findings in dispute. Kollar admitted to the facts in his plea

agreement, and it was from those facts that the district court based its sentencing decision. However,

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No. 07-4405
United States of America v. Kollar

Kollar argues that the district court erred when it “relied on case law that was subsequently

overturned when it held that it was legally required to increase the appellant’s sentence due to his

career offender designation.” Kollar asserts that the district court was referring to U.S. v. Funk, 477

F.3d 421, 430 (2007) (“Funk I”) which held that “a district court making sentencing determinations

may not implicitly reject Congress’ policy decision to prescribe harsher penalties for career offenders

by ignoring or outright rejecting a defendant’s status as a career criminal offender.”

       Funk I was remanded by Funk v. United States, ___ U.S. ___, 128 S. Ct. 861 (2008), without

opinion, in light of Gall v. United States, 552 U.S. 38 (2007). On remand, this Court considered

Gall, as well as Kimbrough v. United States, 552 U.S. 85 (2007), and Rita v. United States, 551 U.S.

338 (2007), and found that the sentence given to Funk was unreasonable due to the district court

imposing its own policy determination regarding marijuana convictions over that of Congress and

the Guidelines and because the district court failed to adequately justify the variance. United States

v. Funk, 534 F.3d 522 (6th Cir. 2008) (“Funk II”). However, the opinion of the panel was vacated

pursuant to this Court’s order granting en banc review. The government then moved to dismiss the

appeal, to which Funk did not object. This Court granted the motion to dismiss and held that the

panel opinion (Funk II) remained vacated. See United States v. Funk, 560 F.3d 619 (2009).

Irrespective of Funk I and Funk II, the district court did not err in sentencing Kollar. The district

court properly considered the Guidelines and therefore, did not commit a significant procedural error.

       Kollar moved for a variance down to the mandatory minimum of 120 months, asking the

district court to disregard his career offender status. A defendant is a career offender if: (1) he was

at least eighteen years old at the time he committed the instant offense; (2) the instant offense is a

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No. 07-4405
United States of America v. Kollar

felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has

at least two prior felony convictions for either a violent crime or a controlled substance offense.

U.S.S.G. § 4B1.1. There is no dispute in this matter that Kollar is a career offender.

       The reasoning behind Kollar’s request for a variance was so that Kollar’s sentence would be

more aligned with that of his co-defendant’s. Hernandez, who was not a career offender, received

a sentence of 63 months. In response, the district judge stated “[y]ou understand by doing that I

would not be giving any effect whatsoever to the career offender designation, and there is recent case

law that says that that’s not something the Court may do, that I can’t just ignore [ ] a career offender

designation.” (ROA, Tr. Vol. 6, 15).

       A district court is required to properly calculate the Guidelines range. As the Supreme Court

explained in Gall, the Guidelines are “the starting point and the initial benchmark for federal

sentencing.” United States v. Thompson, 515 F.3d 556, 561 (6th Cir. 2008); Gall, 128 S. Ct. at 596.

The district court is also to consider the 18 U.S.C. § 3553(a) factors. The § 3553(a) factors include:

(1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of

sentencing, namely, (a) “just punishment” (retribution), (b) deterrence, (c) incapacitation, (d)

rehabilitation; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing

Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for

restitution. Rita, 551 U.S. at 347-348. “The sentencing judge is to ‘impose a sentence sufficient,

but not greater than necessary, to comply with’ the basic aims of sentencing as set out above.” Id.

       In determining the sentence, the district court stated that “the reason there is such a disparity

[between Kollar’s Guidelines range and Hernandez’s sentence] is because, two things, [Kollar] is

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No. 07-4405
United States of America v. Kollar

a natural six, and if there were a higher category, he would probably be a seven or an eight, because

he’s got 18 criminal history points, and 13 starts at a six, he’s actually aided by the fact we don’t go

above six; and he’s a career offender ....” (ROA, Tr. Vol. 6, 17). The district court continued, “[s]o

Mr. Hernandez was a category four and was not a career offender. [Kollar] is a natural six, and is a

career offender. And the guidelines I think correctly require me to consider all of that.” (Id.). In fact,

Kollar may have had “up to five predicate offenses,” given his prior convictions for (1) robbery; (2)

aggravated robbery with firearms specification; (3) trafficking in cocaine; (4) unlawful sexual

contact; and (5) intimidation and assault. (Id. at 17-18). Finally, the district court considered the

Guidelines range for a career offender with a criminal history category of six, which is 210 to 262

months,1 and stated the following:

        I’ve looked at Mr. Kollar’s criminal history. Although he has 18 criminal history
        points, he has not served a sentence greater than three years. I’m also considering
        that Mr. Hernandez, who’s responsibility, criminal involvement, was greater than Mr.
        Kollar, got a sentence of 63 months. I have to give some effect to the fact that Mr.
        Kollar is a criminal history category six and he’s career offender, but a sentence of
        210 to 262 months I think is substantially greater than necessary to meet the statutory
        purposes of sentencing and would be unfairly harsh.

        So what I’m going to do, and I think it is the fairest and most appropriate sentence,
        is to pick a sentence that is between the advisory range for career offender, 210 to
        262, and the 120 to 150, which would be the range without the career offender. And
        that would be a level 29, criminal history category six, which is 151 to 188, and give
        Mr. Kollar midpoint of that, which is 169 months. That is still approximately four
        years above the mandatory minimum and that certainly gives effect and impact to the


        1
         Initially, Kollar started at an offense level of 37. He was given a two level reduction for
acceptance of responsibility and a third level off for a timely guilty plea taking him to a 34 with a
category six, which is a range of 262 to 327 months. (ROA Tr. Vol. 7-8). Kollar was then given
another two level reduction to 32 based upon the filing of a § 5K1.1 motion, which reduced the range
to 210 to 262 months. (Id. at 8-9).

                                                   -7-
No. 07-4405
United States of America v. Kollar

        career offender designation. But I believe if 169 months is not sufficient to protect
        the community, deter Mr. Kollar from future conduct, I don’t know that another three
        or four years will accomplish anything more.

(ROA, Tr. Vol. 6, 24).

        It is clear that the district court did not treat the Guidelines as mandatory and that the district

court only considered the Guidelines and Kollar’s career offender status as one of the 18 U.S.C. §

3553(a) factors. Here, the district court correctly stated that “the Sentencing Guidelines are only

advisory, however, I must consult them, first compute the advisory range correctly and then consult

the Guidelines and consider all of the circumstances of this particular defendant, the nature of the

conduct, and then impose a sentence which is sufficient but not greater than necessary to meet the

statutory purposes of sentencing.” (ROA, Tr. Vol 6, 23).

        Thus, the district court did not err and the sentencing decision is procedurally sound.

        Two-level minor role adjustment

        “Whether a defendant is entitled to a downward offense-level adjustment under U.S.S.G. §

3B1.2 ‘depends heavily on factual determinations, which we review only for clear error.’” United

States v. Bailey, 488 F.3d 363 (6th Cir. 2007)(quoting United States v. Harris, 397 F.3d 404, 409 (6th

Cir. 2005)). “The defendant has the burden of proving by a preponderance of the evidence that he

is entitled to the reduction.” Id. at 369 (citing United States v. Salgado, 250 F.3d 438, 458 (6th Cir.),

cert. denied, 534 U.S. 916 (2001)).

        Kollar requested a two level minor role reduction in the offense level under U.S.S.G. § 3B1.2

of the Guidelines based upon his role in the conspiracy being less than that of his co-defendant,

Hernandez. In response, the district court found that “while Mr. Kollar’s role may have been less

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No. 07-4405
United States of America v. Kollar

than Mr. Hernandez, it’s not so much less that a role in the offense reduction is appropriate. It

wasn’t recommended by the probation department. It’s opposed by the government. So I’m not

going to apply it.” (ROA, Tr. Vol. 6, 23). U.S.S.G. § 3B1.2(b) provides that if a defendant was a

minor participant in any criminal activity, his offense level may be decreased by two levels. A minor

participant is defined as one who is “substantially less culpable than the average participant” and

“less culpable than most other participants.” U.S.S.G § 3B1.2 commentary, applic. notes 3 and 5;

United States v. Owusu, 199 F.3d 329, 337 (6th Cir. 2000). “A defendant who plays a lesser role in

a criminal scheme may nonetheless fail to qualify as a minor participant if his role was indispensable

or critical to the success of the scheme, or if his importance in the overall scheme was such as to

justify his sentence.” United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001).

        Here, Kollar admitted to delivering cocaine to the confidential source who then gave it to

“Bobby,” the undercover agent. Kollar then arranged a subsequent buy with Bobby. He delivered

cocaine to Bobby and accepted payment from Bobby for the cocaine. He also admitted to assisting

Hernandez in adding a cutting agent to the cocaine and repackaging it, which took place in the

apartment building where Kollar was living. Although the district court found that Kollar may be

less culpable than Hernandez, the leader of the conspiracy, we are unable to ascertain the culpability

of “most other participants” or “an average participant” since there are only two defendants in this

case. See United States v. Lopez, 545 F.3d 515, 517 (7th Cir. 2008)(“in situations where criminal

activity involves only two participants (and thus it is impossible to ascertain the culpability of an

‘average’ participant), the key inquiry is the degree of the defendant’s culpability relative to the other

participant’s and the scope of the criminal enterprise.”). Therefore, even though Kollar may be less

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No. 07-4405
United States of America v. Kollar

culpable than Hernandez, his role was indispensable because he aided in the cutting and repackaging

of the cocaine as well as arranging and carrying out drug deals. In addition, there is evidence in the

record to show that Hernandez had many “associates”; however, Kollar failed to show that these

“other associates” were involved to the same or a greater degree than he was. Thus, the district

court did not err in refusing to grant Kollar’s requested reduction. See United States v. Bartholomew,

310 F.3d 912, 925 (6th Cir. 2002) (denying a minor role reduction where the defendant’s residence

was used as a base of operations, he participated in drug transactions, stored a shotgun, and

personally received at least one shipment of marijuana).

       One-level Downward Departure2

       “This court generally does ‘not review a district court’s decision not to depart downward

unless the record shows that the district court was unaware of, or did not understand, its discretion

to make such a departure.’” United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009) (quoting

United States v. Santillana, 540 F.3d 428, 431 (6th Cir.), cert. denied, 129 S. Ct. 469 (2008)); see

also United States v. Puckett, 422 F.3d 340, 344 (6th Cir. 2005), cert. denied, 547 U.S. 1122 (2006);

United States v. Madden, 515 F.3d 601 (6th Cir. 2008).

       Kollar asked the district judge for a downward departure of his criminal history computation

under U.S.S.G. § 4A1.3(b)(1) because it allegedly over-represented the seriousness of his criminal

history. U.S.S.G. § 4A1.3(b)(1) provides that a downward departure may be granted “[i]f reliable



       2
        As to this issue, Kollar references, in his brief, that the trial court abused its discretion by
denying appellant a downward departure of one criminal history level due to his troubled upbringing
but he does not raise any arguments or set forth any facts to support it.

                                                 -10-
No. 07-4405
United States of America v. Kollar

information indicates that the defendant’s criminal history category substantially over-represents the

seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other

crimes.” U.S.S.G. § 4A1.3(b)(1). However, the record fails to show that the district court was

unaware of, or did not understand, its discretion to make such a departure. In fact, the opposite is

true since the district court fully considered Kollar’s criminal history and then granted a substantial

assistance departure and granted a substantial variance below the recommended Guidelines range.

       Unreasonable Sentence under 18 U.S.C. § 3553

       Kollar has waived his right to appeal this issue as it was not one of the limited appealable

issues set forth in his plea agreement. “Criminal defendants may waive their right to appeal as part

of a plea agreement so long as the waiver is made knowingly and voluntarily.” United States v.

Swanberg, 370 F.3d 622, 625 (6th Cir. 2004) (citing United States v. Fleming, 239 F.3d 761, 763-64

(6th Cir. 2001)). We review this type of waiver de novo. Id. at 626.

       The plea agreement stated the following:

       Defendant acknowledges having been advised by counsel of Defendant’s rights, in
       limited circumstances, to appeal the conviction or sentence in this case, including the
       appeal right conferred by 18 U.S.C. § 3742, and to challenge the conviction or
       sentence collaterally through a post-conviction proceeding, including a proceeding
       under 28 U.S.C. § 2255. The Defendant expressly waives those rights, except as
       reserved below. Defendant reserves the right to appeal: (a) any punishment in excess
       of the statutory maximum; (b) any sentence to the extent it exceeds the maximum of
       the sentencing range determined under the advisory Sentencing Guidelines in
       accordance with the sentencing stipulations and computations in this agreement,
       using the Criminal History Category found applicable by the Court. Nothing in this
       paragraph shall act as a bar to the Defendant perfecting any legal remedies Defendant
       may otherwise have on appeal or collateral attack respecting claims of ineffective
       assistance of counsel or prosecutorial misconduct.



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No. 07-4405
United States of America v. Kollar

At the change of plea hearing, the parties agreed that Kollar could appeal the career offender

designation and the minor role reduction issue. The parties modified the plea agreement by striking

the two provisions stating that Kollar could not appeal those issues. During the plea colloquy, Kollar

confirmed that he signed the agreement and initialed each page. He also confirmed that he was

giving up his right to appeal except as to the issue of career offender and/or role in the offense.

Kollar answered in the negative when asked if anyone was threatening or pressuring him. Thus,

Kollar knowingly and voluntarily waived his appellate rights except those set forth above. The issue

of the reasonableness of his sentence was not one that Kollar preserved for appeal. Thus, this issue

is waived.

                                                 III.

       The judgment of the district court is affirmed.




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