                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0020n.06

                                            No. 08-6413

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                    FILED
UNITED STATES OF AMERICA,                         )                             Jan 10, 2011
                                                  )                       LEONARD GREEN, Clerk
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
DAVID JENNINGS,                                   )    EASTERN DISTRICT OF KENTUCKY
                                                  )
       Defendant-Appellant.                       )



       Before: BATCHELDER, Chief Judge; SUTTON and McKEAGUE, Circuit Judges.


       SUTTON, Circuit Judge. David Jennings challenges the outcome of his re-sentencing

proceeding, which resulted in an above-guidelines variance. We affirm.


                                                  I.


       In 2006, Jennings pleaded guilty (1) to distributing cocaine and (2) to using property subject

to forfeiture. 21 U.S.C. §§ 841(a)(1), 853. At sentencing, the district court determined that Jennings

was a career offender and sentenced him to 188 months in prison. Jennings appealed, and the

government agreed that the district court had improperly labeled Jennings a career offender. We

vacated the sentence and remanded for re-sentencing.
No. 08-6413
USA v. Jennings

       The district court reassigned Jennings’ case to a different judge, who revised the guidelines

range to 37–46 months. Reasoning that this range failed to reflect the need to deter Jennings from

future crimes or the extent of Jennings’ criminal history, the judge imposed a 120-month sentence.

Jennings appealed.


                                                 II.


       Jennings’ first objection—that the court did not state the guidelines range—goes nowhere,

and fast. After noting the base offense level and other guidelines adjustments, the court said the new

guidelines range was “37 to 46 months.” R.81 at 5.


       Also unavailing is Jennings’ contention that the district court failed to explain its variance

from the guidelines. At the hearing, the court thoroughly explained its reasons, noting (1) “the

seriousness of the offense”—“drug-trafficking . . . for a number of years,” (2) the need “to promote

respect for the law” because “the sentences that have been imposed previously for [Jennings’] drug

activities have not deterred him from criminal conduct,” and (3) the court’s obligation “to provide

for a just punishment” and “to protect the public” from Jennings’ future crimes given his history of

recidivism. R.81 at 13–14.


       The court, it is true, did not repeat these reasons in the written order of judgment. Section

3553(c)(2) requires district courts to “state[] with specificity in the written order of judgment and

commitment” the “specific reason for the imposition” of a sentence outside the guidelines range.

18 U.S.C. § 3553(c)(2) (2008); cf. 18 U.S.C. § 3553(c)(2) (amending 18 U.S.C. § 3553(c)(2) (2008)

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No. 08-6413
USA v. Jennings

to read that, for certain sentences, courts must state the “reason for the imposition of a sentence . . .

with specificity in a statement of reasons form issued under section 994(w)(1)(B) of title 28”). But

this type of error does not entitle Jennings to yet another sentencing hearing because it was harmless.

See United States v. Poynter, 344 F. App’x 171, 181 & n.8 (6th Cir. 2009). The court verbally gave

its reasons for the sentence and did so in a way that provided sufficient detail for meaningful

appellate review. Cf. United States v. Blackie, 548 F.3d 395, 401 (6th Cir. 2008). “While this court

has emphasized the importance of § 3553(c)(2), it has not vacated a sentence solely for failure to

meet the statute’s written order requirement.” Poynter, 344 F. App’x at 181 n.8; see also United

States v. Thomas, 313 F. App’x 280, 283 (11th Cir. 2009) (per curiam); United States v. Mendoza,

543 F.3d 1186, 1196 (10th Cir. 2008); United States v. Jones, 509 F.3d 911, 916 (8th Cir. 2007).

We see no reason to change course now.


        Jennings’ final objection—that his sentence is substantively unreasonable—fails in light of

the legitimate grounds given for this 120-month sentence and in light of the considerable discretion

given district courts in fashioning a sentence. See Gall v. United States, 552 U.S. 38, 56 (2007).

Case law requires us to consider the extent of a variance—here, roughly three times the guidelines

range—in relation to the reasons given for it. See id. at 47; United States v. Grossman, 513 F.3d

592, 596 (6th Cir. 2008). Jennings, however, offers no reason why, based on all of the § 3553(a)

factors, his ten-year sentence is too long. See United States v. Vowell, 516 F.3d 503, 510–11 (6th

Cir. 2008); United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2007).




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No. 08-6413
USA v. Jennings

       Nor can we find one ourselves. The district court, which assessed the § 3553(a) factors and

the defendant on the scene, amply explained why this sentence was an appropriate one. “[T]he

seriousness of the offense” troubled the court, and so did the reality that Jennings had trafficked in

drugs for over three decades. The court also was troubled by Jennings’ serial run-ins with law

enforcement, see 18 U.S.C. § 3553(a)(1), which included six prior arrests on multiple charges in

addition to his thirteen prior convictions for offenses ranging from trafficking in cocaine to carrying

a concealed weapon and disobeying a police officer. Jennings’ extensive criminal history by itself

distinguished him from the average guidelines offender, see United States v. Brock, 501 F.3d 762,

774 (6th Cir. 2007), but the district court found more. In considering the need “to promote respect

for the law,” 18 U.S.C. § 3553(a)(2)(A), the court noted that Jennings’ previous seven-year sentence

for drug trafficking had not deterred him from continuing with the drug trade, and concluded a

greater sentence was necessary to stop Jennings from breaking the law. The court did not abuse its

discretion in imposing this sentence.


       Jennings adds that the district court relied on several improper factors. See United States v.

Bailey, 488 F.3d 363, 368 (6th Cir. 2007). He points out that the court mentioned prior convictions

that did not count toward his criminal history points. That was not error. The guidelines allow

district courts to consider uncounted criminal convictions and arrests when fashioning a sentence.

See U.S.S.G. § 4A1.3. Switching fields, Jennings argues that the court sentenced him more harshly

due to a prior conviction for which the guidelines had already given him criminal history points. No

“double counting” occurred. The court merely considered the length of Jennings’ previous sentences


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No. 08-6413
USA v. Jennings

to arrive at an appropriate sentence that would deter him from future crimes and protect the public.

It then reasoned that, because a seven-year sentence had not prevented Jennings from drug

trafficking, a ten-year sentence might “promote respect for the law.” See 18 U.S.C. § 3553(a)(2)(A).

That is not an improper consideration. Jennings also claims the district court punished him for

fathering children out of wedlock. See United States v. Barahona-Montenegro, 565 F.3d 980, 985

(6th Cir. 2009). Although the court mentioned Jennings’ children, it did so only when commenting

that Jennings had not supported them.


                                                III.


       For these reasons, we affirm.




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