                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0098n.06

                                            No. 10-4267                                     FILED
                                                                                       Jan 26, 2012
                           UNITED STATES COURT OF APPEALS
                                                                                 LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
RAYMOND D. JOHNSON,                                    NORTHERN DISTRICT OF OHIO

       Defendant-Appellant.

                                                /



BEFORE:        MOORE, CLAY, and McKEAGUE, Circuit Judges.

       CLAY, Circuit Judge. Defendant Raymond D. Johnson pleaded guilty to possession with

the intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), possession with

intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and being a felon

in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Defendant appeals

the district court’s order denying his motion to suppress and appeals his sentence for procedural and

substantive reasonableness. For the reasons that follow, we AFFIRM.

                                         BACKGROUND

       Defendant’s convictions arise from a task force investigation of a suspected large-scale drug

transaction on March 17, 2010 in Cleveland, Ohio. A confidential informant told the police of the

date of the transaction, the location, and the individuals and vehicles that would be involved. Police

conducted surveillance of the Radisson Hotel in North Olmsted, Ohio. They observed Abdul Hakim
                                            No. 10-4267
(“Hakim”) enter the hotel and meet with an individual who was one of the targets of the surveillance.

The two met in the target individual’s hotel room. Hakim and the individual later left the Radisson

and traveled separately to the Marriott Hotel in Cleveland. Hakim left his vehicle and walked to the

back side of the Marriott, pulling a large roll-away suitcase. Another individual, who was also a

target of the surveillance, met Hakim at the back door of the Marriott.

       Hakim then left the Marriott and drove to a residence at 32762 Glen Drive, North Ridgeville,

Ohio (“Glen Drive residence”). After remaining inside the house for fifteen to twenty minutes,

Hakim left the Glen Drive residence. While driving away from the house, he was stopped for a

traffic violation. The officers who stopped Hakim detected a “very strong odor of raw marijuana”

emanating from Hakim’s car and conducted a search. They found $66,000 in cash but no marijuana.

The officers testified that, in their experience, the smell of raw marijuana can remain even after the

drugs have been removed. During questioning, Hakim lied to the officers about his prior

whereabouts. Hakim was taken to a police station for further questioning, but he requested an

attorney and the questioning stopped.

       As the officers continued to observe the Glen Drive residence, they noticed Defendant leave

the residence. His vehicle was subsequently stopped for a traffic violation at a gas station. A police

dog walked the perimeter of the vehicle and alerted officers to the presence of narcotics. Police

officers searched Defendant’s vehicle and recovered several marijuana blunts. Defendant was then

taken into custody. Defendant alleged that he was visiting a friend at the Glen Drive residence, but

police discovered that he actually resided there. Defendant refused to answer further questions.




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        Thirty to forty-five minutes after Defendant departed from the Glen Drive residence, officers

observed a third vehicle arrive there. At least one individual entered the home, remained there for

ten to fifteen minutes, and drove away. That vehicle was also stopped for a traffic violation. Two

individuals were in the car, and the officers learned that one had a lengthy criminal history of drug

trafficking.

        The officers noticed that there were still lights on in the house and a television was on. The

officers believed that at least one individual remained inside the house, though they did not see

anyone. They attempted to discover who lived at the residence, but they could not.

        One of the officers contacted an Assistant United States Attorney to ask about the propriety

of conducting a warrantless protective sweep of the Glen Drive residence. The officers feared that,

when Hakim and the other individuals were released from custody and the traffic stop, respectively,

they might contact individuals who may be in the home and instruct them to destroy evidence. The

attorney advised the officers that they could secure the house.

        The officers knocked on the door and no one answered. They could not open the front door

because a steel pole was wedged between the door knob and the floor. They eventually broke down

the door and checked the home for individuals. They did not find anyone but did see large bags of

marijuana in multiple locations. There was also an overwhelming smell of raw marijuana emanating

from the house. The protective sweep only lasted a few minutes. The police did not seize any

evidence, but left the residence and placed an officer in the driveway.

        The officers then questioned a resident of the duplex attached to the Glen Drive residence,

who stated that the Glen Drive residence always smelled of raw marijuana.



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                                            No. 10-4267
       Officer Scott Payne submitted a search warrant affidavit and received a search warrant for

the Glen Drive residence. After obtaining the search warrant, the officers conducted a search of the

Glen Drive residence and seized dozens of bags of marijuana, heroin, a heroin press, cash, duffle

bags, plastic baggies, a handgun, ammunition, scales, rubber bands, cellophane, two digital scales

and another scale, an electric grinder, an empty magazine, twenty-seven cell phones, and other items.

       On April 13, 2010, a federal grand jury indicted Defendant on three counts: possession with

the intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); possession with

intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D); and being a felon

in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).

       Defendant moved to suppress the evidence obtained in the course of executing the search

warrant, arguing that the search warrant was invalid as it was not supported by probable cause and

it inappropriately contained observations made during the prior warrantless protective sweep. The

district court held an evidentiary hearing and later denied Defendant’s motion to suppress by written

order. Defendant pled guilty to all counts of the indictment, but preserved his right to appeal the

denial of his motion to suppress.

       At the sentencing hearing, the district court indicated that it would depart or vary upward

from the Guidelines range of fifty-one to sixty-three months, because the court believed that

Defendant’s criminal history was under-represented by his criminal history category, that heroin was

the most destructive drug on the streets, and that Defendant was likely to repeat his criminal activity

and needed to be removed from the public sphere for the safety of the community. Defendant argued

against the increase, believing the Guidelines range to adequately represent his criminal history.



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       The district court sentenced Defendant above the Guidelines range, to seventy-eight months

imprisonment and three years of supervised release, and ordered that he pay a special assessment of

three hundred dollars. Defendant timely appealed the denial of his motion to suppress and his

sentence.

                                          DISCUSSION

I.     Motion to Suppress Evidence

       In considering a denial of a motion to suppress evidence, we review a district court’s findings

of fact for clear error and legal conclusions de novo. United States v. Smith, 594 F.3d 530, 535 (6th

Cir. 2010). “[T]he district court’s application of the law to the facts, such as a finding of probable

cause, is [also] reviewed de novo.” United States v. Pasquarille, 20 F.3d 682, 685 (6th Cir. 1994)

(citing United States v. Thomas, 11 F.3d 620, 627 (6th Cir. 1993)). “Where a district court denies

a motion to suppress, this Court considers the evidence in the light most favorable to the

government.” United States v. Hinojosa, 606 F.3d 875, 880 (6th Cir. 2010) (quoting United States

v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc)) (internal alterations and quotation marks

omitted).

       Defendant argues that the initial protective sweep of the Glen Drive residence was a

warrantless and unlawful search, and thus the observations of the smell of marijuana and the bags

of marijuana made during that search should have been excluded from the search warrant affidavit.

Without that information, Defendant contends that the search warrant lacked probable cause. The

government asserts that the initial entry of the residence was supported by exigent circumstances,

namely, the need to perform a protective sweep of the residence to prevent occupants from

destroying evidence. We agree with the government and find that the protective sweep was lawful.

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                                           No. 10-4267
       The Fourth Amendment guarantees individuals the right to be free from “unreasonable

searches and seizures” of “their persons, houses, papers and effects.” U.S. Const. amend. IV.

Searches and seizures must be based on “probable cause, supported by Oath or affirmation.” Id. The

Supreme Court has interpreted the Fourth Amendment to require police officers to obtain search

warrants, supported by affidavits that support probable cause, prior to searching an individual’s

home. United States v. United States Dist. Ct., 407 U.S. 297, 315–16 (1972). “[S]earches and

seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445

U.S. 573, 586 (1980).

       Of course, the warrant requirement is subject to “a few specifically established and well-

delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967); see United States v. Smith,

549 F.3d 355, 359 (6th Cir. 2008). One recognized exception is the “exigent circumstances”

exception, where “the exigencies of [a] situation make the needs of law enforcement so compelling

that the warrantless search is objectively reasonable under the Fourth Amendment.” Mincey v.

Arizona, 437 U.S. 385, 393–94 (1978) (internal quotation marks omitted). “Exigent circumstances

are situations where ‘real immediate and serious consequences’ will ‘certainly occur’ if the police

officer postpones action to obtain a warrant.” Thacker v. City of Columbus, 328 F.3d 244, 253 (6th

Cir. 2003) (quoting Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002)).

       The Sixth Circuit has identified four areas wherein the Supreme Court recognizes exigent

circumstances: hot pursuit of a fleeing felon, imminent destruction of evidence, the need to prevent

a subject’s escape, and risk of danger to the police or others. United States v. Williams, 354 F.3d

497, 503 (6th Cir. 2003); United States v. Johnson, 22 F.3d 674, 680 (6th Cir. 1994). The second

circumstance provides an important exception because of the “urgent need to prevent evidence from

                                                 6
                                            No. 10-4267
being lost or destroyed.” United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir. 1988);

see United States v. Elkins, 300 F.3d 638, 655 (6th Cir. 2002). “This need may be particularly

compelling where narcotics are involved, for narcotics can be easily and quickly destroyed while a

search is progressing.” Sangineto-Miranda, 859 F.2d at 1511–12 (quoting United States v. Socey,

846 F.2d 1439, 1444–45 (D.C. Cir. 1988)) (internal quotation marks omitted); see also Illinois v.

McArthur, 531 U.S. 326, 331–32 (2001); Modrell v. Hayden, 436 F. App’x 568, 578–79 (6th Cir.

2011).

         Exigent circumstances permit warrantless entry of a home; however, “the police may not

enter a private residence without a warrant unless both ‘probable cause plus exigent circumstances’

exist.” United States v. McClain, 430 F.3d 299, 304 (6th Cir. 2005) (citing Kirk v. Louisiana, 536

U.S. 635, 638 (2002) (per curiam) and United States v. Chambers, 395 F.3d 563, 572 (6th Cir.

2005)). Probable cause exists where, given the totality of the circumstances, there is a reasonable

grounds for the belief of wrongdoing, which is “supported by less than prima facie proof but more

than mere suspicion.” United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990); United States v.

Brown, 449 F.3d 741, 745 (6th Cir. 2006). Where an officer believes that he must enter a private

residence without a warrant to prevent the immediate destruction of contraband, he must

demonstrate: “1) a reasonable belief that third parties are inside the dwelling; and 2) a reasonable

belief that these third parties may soon become aware the police are on their trail, so that the

destruction of evidence would be in order.” Sangineto-Miranda, 859 F.2d at 1512.

         In this case, the police officers were led to the Glen Drive residence after a report from a

reliable, confidential informant indicated that a large-scale drug transaction would occur in the

Cleveland area. Hakim, an individual believed to be a part of the drug transaction, was seen

                                                  7
                                             No. 10-4267
traveling to two hotels to exchange a large bag with other targeted individuals. Directly after the

transaction, Hakim went to the Glen Drive residence and left fifteen to twenty minutes later. When

subsequently searched, officers found $66,000 and smelled a “very strong odor of raw marijuana”

emanating from the car.

        Officers also observed Defendant leaving the Glen Drive residence and, when Defendant was

subsequently searched, discovered that he had marijuana in his car. After Defendant left the

residence, the officers also observed two individuals arrive at the home, stay for ten to twenty

minutes, and then leave. When subsequently searched, it was discovered that one of the individuals

had a lengthy criminal drug history.

        Based on the evidence of Hakim’s participation in the large-scale drug transaction and his

stop at the residence, the smell of marijuana emanating from Hakim’s car after leaving the residence,

the presence of marijuana in Defendant’s car after leaving the residence, and the fact that at least four

individuals with drug histories arrived at and left the residence for short periods during the officer’s

surveillance, we find that the officers had a reasonable belief that marijuana was located at the Glen

Drive residence.

        We also credit the officer’s belief that one or more persons remained at the Glen Drive

residence. The police did not know how many people were in the house at the time of their arrival,

but they observed that the lights and a television remained on. They also observed a number of

people entering and exiting the house. Those observations led them to conclude that at least one

individual remained in the house. Although the fact that a television and lights remained on are not

conclusive evidence that someone is in the home, it gave the officers more than a “mere suspicion”

of occupancy, which is sufficient to form a basis of reasonable belief. See Bennett, 905 F.2d at 934.

                                                   8
                                            No. 10-4267
       Moreover, the officers were aware that Hakim and the two other individuals taken into

custody after leaving the Glen Drive residence would soon be released from custody and the traffic

stop, respectively, after being questioned about narcotics and their connection with the Glen Drive

residence. Upon release from custody, they would be able to contact the individual(s) believed to

be in the house and instruct them to destroy the narcotics. We find that the officers thus had “a

reasonable belief that these third parties may soon become aware the police are on their trail, so that

the destruction of evidence would be in order.” Sangineto-Miranda, 859 F.2d at 1512. The exigent

circumstances exception applies, and we find that the officer’s initial entry for the protective sweep

was constitutional.

       We also determine that even if the initial protective sweep was unconstitutional and the

observations obtained during that sweep were removed from the search warrant, there was sufficient

remaining evidence in the search warrant affidavit to support a finding of probable cause.

       A search warrant may be issued only if officers can demonstrate probable cause that a search

is justified. U.S. Const. amend. IV; United States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005).

An adjudicator issuing the warrant must have a “substantial basis for concluding that probable cause

existed.” Laughton, 409 F.3d at 747 (quoting Illinois v. Gates, 462 U.S. 213, 238–39 (1983)). “This

Court has explained that probable cause exists when there is a fair probability, given the totality of

the circumstances, that contraband or evidence of a crime will be found in a particular place.” United

States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003) (quoting United States v. Davidson, 936 F.2d

856, 859 (6th Cir. 1991)) (internal quotation marks omitted).

       Officer Payne’s search warrant affidavit outlined the information from the reliable,

confidential informant of the large scale drug transaction of March 17, 2010 and noted that the

                                                  9
                                            No. 10-4267
informant’s assertions were corroborated. The affidavit outlined Hakim’s connection to the drug

transaction and the Glen Drive residence and the evidence found during the traffic stop of Hakim’s

vehicle. The affidavit then addressed Defendant’s relationship with the Glen Drive residence and

the evidence found after he was stopped and the information related to the other two visitors to the

residence. The affidavit also noted that a neighbor occupying the duplex home attached to the Glen

Drive residence frequently smelled raw marijuana emanating from the residence.

       The attesting officer concluded that:

       Based upon the investigation, the information contained herein and also obtained
       from the [confidential informant], and your affiant[’]s training and experience, it is
       common for large drug transactions to take place utilizing differing and/or multiple
       locations, different people and in stages due to the people observed entering, exiting,
       and near [the Glen Drive residence], the large quantity of cash recovered from . . .
       Hakim and the overwhelming smell of raw marihuana emanating from his vehicle
       and his entry and exist from the attached garage of [Defendant’s] residence your
       affiant is informed and believes that the house is a distribution point for marihuana
       ....

(Search Warrant Affidavit ¶ 10.)

       The affidavit thus contained numerous assertions of fact supporting the officer’s conclusion

that the Glen Drive residence was a distribution point for marijuana and that narcotics would be

found there. Although the affidavit did discuss the observations of marijuana in the initial

warrantless protective sweep of the Glen Drive residence, those observations were made in a single,

brief sentence. It is true that the allegations of finding the marijuana in the protective sweep would

alone be enough to support a probable cause finding, but there is ample evidence in the remaining

paragraphs of the affidavit to show the officers’ reasonable belief that marijuana would be found at

the residence.



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                                           No. 10-4267
       We find, therefore, that the district court did not err in denying Defendant’s motion to

suppress.

II.    Defendant’s Sentence

       Defendant also challenges his sentence as procedurally and substantively unreasonable. We

review the district court’s imposition of sentence under an abuse of discretion standard. Gall v.

United States, 552 U.S. 38, 41 (2007); United States v. Baker, 559 F.3d 443, 448 (6th Cir. 2009).

In considering a district court’s application of the Sentencing Guidelines to a defendant’s sentence,

we review its findings of fact for clear error and legal determinations de novo. Baker, 559 F.3d at

448.

       A.      Procedural Reasonableness

       We must first consider whether the district court committed any procedural error in

sentencing Defendant. Gall, 552 U.S. at 51. Procedural errors include: “failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an explanation for any deviation from the

Guidelines range.” Id.

       Defendant argues that his sentence is procedurally unreasonable because the district court (1)

failed to adequately explain its decision to sentence Defendant above the applicable Guidelines




                                                 11
                                             No. 10-4267
range1 and (2) failed to consider Defendant’s arguments under the 18 U.S.C. § 3553(a) sentencing

factors.

           Under USSG § 4A1.3, a district court may depart upward from a Guidelines range where

“reliable information indicates that 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.” USSG § 4A1.3(a)(1). Here, the district court departed upward, because it

felt that Defendant’s criminal history was under-represented by his criminal history category. The

court effectuated the upward departure by increasing Defendant’s offense level by four points, rather

than increasing Defendant’s criminal history category. Although the propriety of this procedure was

not raised in the proceedings below or in Defendant’s appellate brief, Defendant argued orally that

the district court erred in increasing the offense level (a “vertical” increase), rather than the more

appropriate action of increasing the criminal history category (a “horizontal” increase). Because this

specific issue was not raised in Defendant’s brief, it might have been waived on appeal. Fitts v.



           1
         It is unclear whether the court departed or varied upward, because the district court stated
that it was doing both. In general, a “variance” occurs when a court invokes its discretion to increase
or decrease a sentence based on the § 3553(a) sentencing factors, whereas a “departure” occurs when
a court modifies a sentence based on a specific Guideline provision, such as § 4A1.3. See United
States v. Jordan, 544 F.3d 656, 671 n.12 (6th Cir. 2008). We have held that the terminology used
by a district court is not critical, so long as it recognized its discretion to impose a sentence outside
of the Guidelines range. United States v. Herrera-Zuniga, 571 F.3d 568, 586 (6th Cir. 2009). Here,
the district court explicitly invoked USSG § 4A1.3(a)(1) in imposing a sentence above the
Guidelines range, which would indicate a departure, but also mentioned the § 3553(a) factors in
increasing Defendant’s sentence, which would indicate a variance.
         Because the district court recognized its ability to sentence Defendant outside of the
Guidelines range and because we find that it did not abuse its discretion in imposing Defendant’s
sentence, we find it unnecessary to determine whether the district court departed or varied upward.
However, we will assume, for the sake of argument, that the district court departed upward and was
therefore subject to the requirements of USSG § 4A1.3.

                                                   12
                                             No. 10-4267
Sicker, 232 F. App’x 436, 442 (6th Cir. 2007) (“[I]ssues not raised in appellate briefs are deemed

waived.”); Thaddeus-X v. Blatter, 175 F.3d 378, 403 n.18 (6th Cir. 1999). In any event, we find that

the argument fails. In United States v. Barber, 200 F.3d 908 (6th Cir. 2000), we held that the

language of USSG § 4A1.3 “does not limit a court to departing in the criminal history category alone

and does not prohibit a court from using an increase in the offense level to accomplish the same

result.” 200 F.3d at 913–14. Moreover, in this case, the ultimate sentencing range would have been

the same if the district court had increased the criminal history category rather than offense level.

The district court’s approach to its ultimate calculation of Defendant’s sentence was thus not

erroneous.

        We also find that the district court fully detailed its reason for departing upward in light of

Defendant’s criminal history, which it felt was under-represented by the probation officer’s

calculation. The court engaged in a lengthy discussion of the nature and circumstances of each of

Defendant’s previous convictions and stated why each was important in its sentencing decision. The

court found that the number of prior convictions and the relatively small punishments given for each

in relation to the seriousness of the crimes show that Defendant was not easily deterred, was not

likely to modify his behavior, and was likely to commit more crimes, particularly drug trafficking.

The court heard Defendant’s arguments that the criminal history adequately represented Defendant’s

past, but it rejected that argument on the basis of its analysis.

        Furthermore, the district court examined the § 3553(a) sentencing factors, even noting them

by name, and applied Defendant’s circumstances to each factor. Defendant’s primary argument with

respect to the sentencing factors is that the district court failed to consider his arguments concerning

the representation of his criminal history under § 3553 subfactors (a)(1) and (2).

                                                  13
                                             No. 10-4267
        Under § 3553(a)(1), the nature and circumstances of the offense and the history and

characteristics of the Defendant, the district court engaged in a lengthy discussion of the facts leading

up to Defendant’s arrest for the drug and firearm crimes. The court then addressed Defendant’s prior

record, his propensity for violence, his childhood, education, and employment, and his relationship

with his family. The court noted Defendant’s false statement to a pretrial services officer, but stated

that it would not consider that information in calculating Defendant’s sentence. We find this to be

a complete explanation under § 3553(a)(1).

        Under § 3553(a)(2), the court stated that there was a “need for the sentence imposed” because

of defendant’s “propensity to continue [to] traffic in drugs is grossly understated by the nature of his

convictions as outlined here.” (Sentencing Hr’g Tr. 18–19.) The court also noted that Defendant

served relatively brief sentences for each of his prior convictions and was not deterred by the prior

convictions, because Defendant continued to commit crimes just months after his convictions. The

court agreed that some of the prior crimes were only misdemeanors, but found that they still

“indicate clear evidence the defendant is a persistent, on-going drug trafficker.” (Id. 21.) We believe

that this analysis sufficiently explained the § 3553(a)(2) considerations.

        Because the district court fully considered the § 3553(a) factors and explained its reasoning

for imposing a sentence above the Guidelines range, we find that its sentencing procedures were

reasonable.

        B.      Substantive Reasonableness

        We next consider Defendant’s sentence for substantive reasonableness. “A sentence is

substantively unreasonable if the district court ‘selects a sentence arbitrarily, bases the sentence on

impermissible factors, fails to consider relevant sentencing factors, or gives an unreasonable amount

                                                   14
                                            No. 10-4267
of weight to any pertinent factor.’” Baker, 559 F.3d at 448 (quoting United States v. Conatser, 514

F.3d 508, 520 (6th Cir. 2008)). Where, as here, the sentence is outside of the Guidelines range, the

Court does not apply a presumption of reasonableness or unreasonableness to the sentence. Gall,

552 U.S. at 51. Rather, it gives “due deference to the district court's decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.” Id.

       Defendant argues that his sentence is substantively unreasonable because the district court

placed an unreasonable amount of weight on his prior criminal history and on the district court’s

characterization of the “dangerous” nature of heroin. Defendant contends that USSG § 2D1.1

already incorporates considerations of the nature of heroin, so increasing Defendant’s sentence on

the basis of the dangers of heroin was unwarranted.

       We first find that the district court did not place an unreasonable amount of weight on

Defendant’s prior criminal history. Although the district court discussed Defendant’s criminal

history at length, the district court also emphasized other compelling reasons for imposing its

sentence and the upward departure. The court admonished Defendant for trafficking heroin, which

it considered to be “the most addictive, destructive drug on the streets.” The court felt that “nothing

[is] more dangerous or deadly than heroin, [as it] creates addicts who then go out and commit crime

to feed their habit.” The court also found that Defendant’s acts of trafficking were not an isolated

event. The court next emphasized the need for Defendant to be taken off the streets for the public’s

safety, to learn that his crimes are wrong, and for time to reject his lifestyle of drug dealing and

greed. Defendant concedes that the court had discretion to consider all of these matters, including

Defendant’s criminal history, in departing upward from the Guidelines range. Because the district



                                                  15
                                            No. 10-4267
court considered a number of factors in deciding to impose a sentence above the Guidelines range,

we find that it did not give unreasonable weight to Defendant’s prior criminal history.

       We also find that the district court did not abuse its discretion in emphasizing what it

believed to be dangerous effects of heroin. In Spears v. United States, the Supreme Court held that

“district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based

on a policy disagreement with those guidelines.” 129 S. Ct. 840, 843-44 (2009) (per curiam); see

Kimbrough v. United States, 552 U.S. 85, 110 (2007). Following Kimbrough and Spears, a

sentencing court is permitted to consider the nature of certain drugs and its personal disagreement

with the guidelines range in deciding a defendant’s sentence. See generally United States v.

Montague, No. 09-5542, 2011 U.S. App. LEXIS 21162, at *9–10 (6th Cir. Oct. 19, 2011). In

Herrera-Zuniga, we held that a district court’s discretion to reject, on policy grounds, an

otherwise-applicable provision of the Guidelines is not limited to the crack-cocaine context. 571

F.3d 568, 584 (6th Cir. 2009); see also United States v. Moore, 372 F. App’x 576, 579 n.3, 582 (6th

Cir. 2010) (stating that Herrera-Zuniga “expanded” the scope of Spears). Relying on the Supreme

Court’s decisions in Kimbrough and Spears, we reasoned this rule “follows inexorably from the

[Supreme] Court’s holding in Booker [v. United States, 543 U.S. 220 (2005),] that the Guidelines

are advisory only.” Herrera-Zuniga, 571 F.3d at 585.

       Thus, the discretion to reject the Guidelines on policy grounds “applies to all aspects of the

Guidelines.” United States v. Cole, 343 F. App’x 109, 115 (6th Cir. 2009); see Montague, 2011 U.S.

App. LEXIS 21162, at *10. We find that this naturally includes a district court’s discretion to

consider the nature of certain drugs—in this case heroin—and decide that the Guidelines do not

provide adequate punishment. Defendant admits that, post-Booker, the district court has discretion

                                                 16
                                            No. 10-4267
to consider the nature of heroin, but he argues that the district court must describe more than the

“vague effect of heroin on the public” in order for its discretion to be substantively reasonable. We

disagree that the district court here merely mentioned the vague effects of heroin. The court

described heroin’s addictive effects, noted that it is essentially “poison,” characterized the drug as

especially “destructive,” “dangerous,” and “deadly” compared to other drugs, and stated that heroin

addicts are likely to commit crime to feed their habit. Because the district court is permitted to

consider the nature of heroin and because it fully described its reasons for believing heroin to be

worse than other drugs, it did not abuse its discretion.

       Because we find that the district court’s imposition of sentence was not procedurally or

substantively unreasonable, we affirm Defendant’s sentence.

                                          CONCLUSION

       For the reasons discussed above, we AFFIRM the district court order denying Defendant’s

motion to suppress and AFFIRM Defendant’s sentence.




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