                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0461n.06

                                        Case No. 18-5924

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                  Aug 30, 2019
UNITED STATES OF AMERICA,                               )                     DEBORAH S. HUNT, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )   ON APPEAL FROM THE UNITED
v.                                                      )   STATES DISTRICT COURT FOR
                                                        )   THE EASTERN DISTRICT OF
ANTWON BROOME,                                          )   TENNESSEE
                                                        )
       Defendant-Appellant.                             )




BEFORE: COLE, Chief Judge; SILER and CLAY, Circuit Judges.

       SILER, Circuit Judge. Antwon Broome appeals his within-Guidelines range sentence,

arguing that it is procedurally and substantively unreasonable. We AFFIRM.

                                                 I.

       After discovering contraband—including fentanyl, methamphetamine, and two loaded

firearms—at Broome’s residence, the Government charged Broome with: (1) possession with

intent to distribute heroin, (2) possession with intent to distribute methamphetamine, and (3) being

a felon in possession of a firearm.

       Broome pleaded guilty to possessing methamphetamine with intent to distribute, and the

Government dropped the remaining charges.
Case No. 18-5924, United States v. Broome


       The presentence report (“PSR”) calculated Broome’s base offense level as 24, adjusted

upwards two levels (to 26) because he possessed firearms. Broome’s prior convictions for, among

other things, attempted first-degree murder, aggravated robbery, and drug trafficking, qualified

him as a career offender under USSG § 4B1.1, resulting in an offense level of 34. He also received

a three-level decrease for acceptance of responsibility, resulting in a final offense level of 31. His

criminal history placed him in criminal history category IV, so his Guidelines sentencing range

was 188 to 235 months’ imprisonment.

       Broome filed a motion for a downward variance. He claimed that the career offender

enhancement resulted in an unfair sentence and asked that the district court sentence him to 92 to

115 months’ imprisonment—the range he would have received without the career offender

enhancement.

       The Government opposed the variance, arguing that each of the 18 U.S.C. § 3553(a)

factors—which courts consider in sentencing offenders—supported the PSR’s recommended

sentence. Pertinently, it argued that Broome’s criminal history suggested that he was likely to

reoffend; thus, the Government reasoned, the enhancement should be applied to “protect the public

from further crimes,” see 18 U.S.C. § 3553(a)(2)(C). In so arguing, the Government relied on a

report issued by the United States Sentencing Commission (the “Sentencing Commission”) which

concluded that “[c]areer offenders who have committed a violent instant offense or a violent prior

offense generally . . . recidivate at a higher rate than [other] career offenders, and are more likely

to commit another violent offense in the future.” (Id. (quoting Report to Congress: Career

Offender Sentencing Enhancements (2016), https://www.ussc.gov/research/congressional-

reports/2016- report-congress-career-offender-enhancements [hereinafter Career Offender

Report])). Further, the Government claimed that a within-Guidelines sentence would “avoid



                                                -2-
Case No. 18-5924, United States v. Broome


unwarranted sentence disparities” between Broome and similarly situated offenders. It cited no

evidence supporting this proposition.

        At sentencing, the district court accepted the PSR’s Guidelines calculation without

objection and then heard Broome’s counsel on his motion for a variance. During argument,

counsel primarily reiterated the arguments raised in the motion, but also noted that “the trend in

application of the career offender [enhancement is for] courts . . . to grant variances . . . below the

career offender guideline range.” Counsel also explained that “all the research indicates that a

longer sentence does not create a higher deterrent effect . . . . So a difference of five years here . .

. does not gain any additional deterrent impact; it’s just punishment.”

        The district court denied Broome’s motion, considered the 18 U.S.C. § 3553(a) factors,

and imposed a sentence of 190 months’ imprisonment—two months above the low end of

Broome’s Guidelines range. The court reasoned that the nature and circumstances of Broome’s

offense, along with his prolific criminal history, justified a within-Guidelines sentence.

                                                  II.

        Broome claims that his sentence is procedurally and substantively unreasonable because

the district court relied on “clearly erroneous facts” when it found that a within-Guidelines

sentence was necessary to: (1) avoid unwarranted disparity between Broome and similarly-

situated offenders, and (2) protect the public.

        The border between procedural and substantive reasonableness can be blurry, and the

analysis often overlaps. United States v. Herrera-Zuniga, 571 F.3d 568, 579 (6th Cir. 2009); see

also United States v. Adams, 873 F.3d 512, 520 (6th Cir. 2017) (explaining that “[t]he

determination of what falls in the procedural versus substantive prong of [the sentencing] analysis,

however, ‘is not fully settled within our [c]ircuit” (internal quotation marks and citation omitted)).



                                                  -3-
Case No. 18-5924, United States v. Broome


       Here, the overlap is prevalent: Broome bases both of his unreasonableness challenges on

the same argument, i.e., that the district court relied on erroneous information in applying the

career offender enhancement.

       Recently, however, we have concluded that whether a district court improperly relied on

erroneous information or assumptions in fashioning a sentence relates to the procedural

reasonableness of the sentence. United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019).

Thus, though Broome packages his argument as a challenge to both the procedural and substantive

reasonableness of his sentence, Broome truly only contests the procedural aspect.

       A.      Broome’s Sentence is Procedurally Reasonable

       We review the procedural reasonableness of a sentence for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51 (2007). A defendant may establish that his sentence is procedurally

unreasonable by demonstrating that, in determining the sentence, the district court relied on

“clearly erroneous facts,” id., and that those clearly erroneous facts “actually served as the basis

for the sentence . . . .” Adams, 873 F.3d at 517 (quoting United States v. Robinson, 898 F.2d 1111,

1116 (6th Cir. 1990)).

       Broome claims that the district court relied on erroneous information when it found that a

within-Guidelines sentence was necessary to: (1) avoid unwarranted disparity between Broome

and similarly-situated offenders, and (2) protect the public. He bases both arguments on the fact

that the Government, citing the Career Offender Report, told the district court that offenders like

Broome—who have “violent career offender predicates”—“are the people that the career offender

guidelines should definitely be used against,” when, in fact, the report suggests otherwise. We

address each argument separately.




                                               -4-
Case No. 18-5924, United States v. Broome


               1. Unwarranted Disparity

       Broome first argues that the Career Offender Report contains empirical data demonstrating

that “mixed category” career offenders (i.e., career offenders like Broome who have committed

both drug-trafficking and violent crimes) regularly receive below-Guidelines sentences. He notes

that the report claims that mixed-category offenders only receive a within-Guidelines sentence

23.5% of the time. Thus, Broome maintains, “by [subjecting him to] a within-guideline sentence,”

the district court created a sentencing disparity.

       We disagree. As an initial matter, as the Seventh Circuit has explained “it is pointless for

a defendant whose sentence . . . is within the Guidelines to” raise an unwarranted disparity

argument. See United States v. Shrake, 515 F.3d 743, 748 (7th Cir. 2008). Put differently, “the

guidelines are designed to avoid unwarranted disparities—[thus,] whatever else may be wrong

with a within-guidelines sentence, it is not likely to be an unwarranted disparity.” United States

v. Wimbley, 349 F. App’x 54, 58 (6th Cir. 2009) (citation omitted); see United States v. Swafford,

639 F.3d 265, 270 (6th Cir. 2011) (noting that an “unwarranted disparity” argument is an

“unconventional ground for challenging a within-guidelines sentence” (emphasis omitted)).

       And in any event, Broome’s argument lacks merit. Nothing in the record suggests that the

sentencing judge relied on false information—whether contained in the report, the Government’s

arguments, or elsewhere. To be sure, the Government argued that Broome qualifies as a career

offender based on his criminal history—which is true. It did not, however, tell the judge that career

offenders like Broome receive a within-Guidelines sentence more often than not. Further, the

record does not suggest that the district court relied on any of the Government’s statements or

otherwise considered them as “important factors” in fashioning Broome’ sentence. The district

judge did not even reference the Government’s position in finding that a within-Guidelines range



                                                 -5-
Case No. 18-5924, United States v. Broome


sentence would not create a disparity. Cf. Adams, 873 F.3d at 518-19 (reasoning that the district

court relied on false information presented by Government when the district court explicitly

referenced the information as a justification for the sentence imposed). Rather, the district court

reasoned that a within-Guidelines sentence would not create a disparity because, as noted, “the

[G]uidelines are designed to avoid unwarranted disparities.” Wimbley, 349 F. App’x at 58 (citation

omitted).

       Moreover, the Career Offender Report does not help Broome as much as he contends.

While the report says that mixed-category offenders like Broome receive below-Guidelines

sentences 23.5% of the time, it also states that 73.5% of those downward variances are based on

Government-sponsored motions.1 (Career Offender Report at 35). So, according to the report,

most mixed-category offenders receive a variance only after providing the Government with

substantial assistance or otherwise demonstrating to the prosecution that the Guidelines range was

inappropriate. Broome, however, did not provide substantial assistance and is therefore not

“similarly situated” to the offenders who did. United States v. Mason, 410 F. App’x 881, 886 (6th

Cir. 2010) (noting that sentencing disparities between offenders who provide substantial assistance

and offenders who do not are warranted). Thus, Broome is dissimilar from the group of offenders

able to obtain a Government-sponsored downward variance. See id.

       Finally, Broome’s reliance on United States v. Miller, 601 F.3d 734 (7th Cir. 2010), is

misplaced. There, unlike here, the district court sentenced the defendant (a child sex offender) to

a sentence that was 50% higher than his Guidelines range. Id. at 739. In justifying the departure,

the district court stated: “[t]he recidivism rate of child sexual abusers is . . . massive. Nothing




1
  The report indicates that mixed-category career offenders only receive non-Government-
sponsored downward variances 26.5% of the time. (Career Offender Report at 35).
                                               -6-
Case No. 18-5924, United States v. Broome


seems to work.” Id. at 737 (alterations in original). On appeal, the defendant produced studies

showing that the sex offenders do, in fact, rehabilitate. The circuit court reversed, finding that the

district judge’s blanket statement about the impossibility of rehabilitation may not be true. Id. at

740. Here, unlike in Miller, Broome received a within-Guidelines range sentence. Moreover, the

district court did not explicitly voice any personal ill-informed beliefs.

               2. Protection to the Public

       Next, Broome claims that the district court erred insofar as it concluded that a within-

Guidelines sentence would reduce his likelihood of recidivism—and therefore offer greater

protection to the public than would a below-Guidelines sentence—because studies show that a

higher sentence does not better advance the purpose of protecting the public. In support, he

explains that mixed-category career offenders sentenced pursuant to the career offender

enhancement reoffend at a rate of 69.4%, whereas defendants who are not career offenders but

nonetheless have a criminal history sufficient to place them in category IV reoffend 77.1% of the

time. Accordingly, Broome maintains—because he was placed in criminal history category IV

(regardless of the career offender enhancement)—the likelihood that he will reoffend is around

70%, regardless whether he is sentenced as a career offender.

       We reject Broome’s position. Here, again, nothing in the record suggests that the district

court relied on erroneous information in fashioning Broome’s sentence. The Career Offender

Report states: “Career offenders who have committed a violent instant offense or a violent prior

offense generally have a more serious and extensive criminal history, recidivate at a higher rate

than drug trafficking only career offenders, and are more likely to commit another violent offense

in the future.” (Career Offender Report at 2-3). Thus, assuming the court relied on this

information, or otherwise assumed that Broome was likely to reoffend due to his criminal history



                                                 -7-
Case No. 18-5924, United States v. Broome


and therefore should receive a within-Guidelines range sentence, such information or assumption

was true. No false information was considered, and Broome’s argument fails.

       B.      Broome’s Sentence is Substantively Reasonable

       “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).” United

States v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). Broome received a within-

Guidelines range sentence (and concedes that the district court calculated that range correctly), so

the court may presume that his sentence is substantively reasonable. Adams, 873 F.3d at 520.

       Broome’s substantive reasonableness argument—which simply mirrors his procedural

unreasonableness one—fails. As noted, a defendant contesting the information or assumptions a

district judge relied on in fashioning a sentence raises a procedural challenge, not a substantive

one. Parrish, 915 F.3d at 1047. And, as discussed above, the record does not substantiate

Broome’s claims.

       AFFIRMED.




                                                -8-
