                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0546n.06

                                       Nos. 07-5722/07-5741

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                   FILED
UNITED STATES OF AMERICA,                                  )                   Aug 07, 2009
                                                           )             LEONARD GREEN, Clerk
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )   ON APPEAL FROM THE UNITED
                                                           )   STATES DISTRICT COURT FOR
RANDALL R. PARKER               (07-5722)                  )   THE MIDDLE DISTRICT OF
KENNETH B. KIMBALL              (07-5741)                  )   TENNESSEE
                                                           )
       Defendants-Appellants.                              )
                                                           )


       Before: CLAY, COOK, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Randall Parker and Kenneth Kimball appeal their sentences

following our prior remand for resentencing in light of United States v. Booker, 543 U.S. 220 (2005).

We affirm.

                                                  I.

       Parker and Kimball were convicted after a jury trial of various drug, firearms, and money-

laundering offenses arising from their participation in a vast cocaine-trafficking conspiracy. Kimball

was also convicted of witness tampering, soliciting a crime of violence, and obstruction of justice

for hiring another conspirator to attempt to kill several witnesses, including Parker. The district

court, using the pre-Booker mandatory Sentencing Guidelines, sentenced Parker to life

imprisonment, and Kimball to consecutive life sentences, plus 15 years.
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United States v. Parker; United States v. Kimball

       We considered Parker’s and Kimball’s direct appeals in United States v. Kimball, 194 F.

App’x 373 (6th Cir. 2006). There, we affirmed each conviction, and rejected various challenges to

the district court’s Guidelines calculations. We vacated Parker and Kimball’s sentences and

remanded for resentencing, however, because the two defendants were “sentenced under the

mandatory guidelines regime abrogated by Booker.” 194 F. App’x at 378.

       On remand, the district court determined that our order was “a classic Booker remand and

[was] not a remand for [a] de novo sentencing hearing.” Accordingly, the court stated that it was not

required to revisit the defendants’ objections to its Guidelines calculations. The court nonetheless

addressed, and rejected, each of the defendants’ objections, so that “the record [in] the Court of

Appeals [would] be sufficient.” The court then considered the advisory Guidelines ranges—life

imprisonment for Parker, and consecutive life terms plus 15 years for Kimball—and the 18 U.S.C.

§ 3553(a) sentencing factors, and sentenced Parker and Kimball to the same sentences it had imposed

prior to the remand.

       These appeals followed.

                                                 II.

                                                 A.

       Reviewing sentences on appeal, we “first ensure that the district court committed no

significant procedural error,” and “then consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, __, 128 S. Ct.

586, 597 (2007). We apply a rebuttable presumption of reasonableness to within-Guidelines

sentences. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).

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United States v. Parker; United States v. Kimball

                                                   B.

       Parker first argues that the district court erred in interpreting the scope of our remand. He

contends that, because we “vacated” his sentence, the remand “mandated [that] the District Court

essentially conduct the hearing de novo, as if the sentence had never been imposed.” Parker’s Br.

at 13. He argues that the district court therefore erred in failing to “reexamine” his challenges to his

Guidelines range. Id.

       Nothing in our remand order compelled that reexamination. In his first appeal, we rejected

all of Parker’s Guidelines-range challenges, and affirmed the district court’s calculation. See

Kimball, 194 F. App’x at 378. We remanded in light of Booker to determine only if the district court

would have imposed a different sentence had that Guidelines range been advisory, rather than

mandatory. See United States v. Worley, 453 F.3d 706, 709 (6th Cir. 2006) ( “The goal of the Booker

remand is to determine if, at the time of sentencing, the district judge would have imposed a different

sentence in the absence of mandatory guidelines”) (quoting United States v. Re, 419 F.3d 582, 584

(7th Cir. 2005)). We vacated Parker’s sentence to allow the district court to reconsider it post-

Booker, but that did not invite the district court to revisit matters on which we had already ruled.

The district court thus correctly did not reexamine Parker’s challenges to his Guidelines range, and

it properly interpreted the scope of our remand.

       Parker now raises those same Guidelines challenges again here. He argues, for example, that

the district court violated his Sixth Amendment rights by holding him responsible for 150 kilograms

of cocaine, when the jury found him guilty of only 5 kilograms or more. We rejected that argument

in his first appeal, holding that, because “[t]he statutory maximum applicable to such an amount is

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United States v. Parker; United States v. Kimball

life imprisonment, see 21 U.S.C. § 841(b), which is what he received . . . there is no Sixth

Amendment violation.” Kimball, 194 F. App’x at 378. Parker also argues that the district court

erred in applying sentencing enhancements for obstruction of justice, playing a leadership or an

organizing role, sophisticated money laundering, and possession of a firearm. We rejected each of

those arguments as well. Id. Our holdings became the law of the case, and we therefore do not

reconsider Parker’s Guidelines challenges here. See United States v. Mendez, 498 F.3d 423, 426 (6th

Cir. 2007).

       Parker also raises two new arguments, namely that the district court erred in counting his

prior marijuana-possession conviction as a felony under 21 U.S.C. § 841(b)(1), and in entering

criminal forfeiture judgments following trial. But Parker waived those arguments when he failed

to raise them in his first appeal. See United States v. McKinley, 227 F.3d 716, 718 (6th Cir. 2000)

(when a party fails to raise an argument that was “available to the [party] during the first appeal[,]”

the party is “barred from reasserting that issue in any subsequent appeals occurring in that case”).

       Parker does not otherwise challenge his sentence. The district court committed no procedural

error in imposing the sentence, and Parker’s within-Guidelines life sentence is substantively

reasonable, given his extensive role in a massive cocaine-trafficking conspiracy.

                                                  C.

       Kimball also challenges his sentence of consecutive life terms in prison, plus 15 years. He

first argues that his sentence was procedurally unreasonable because, he says, the district court failed

to recognize, when weighing his “history and characteristics” under § 3553(a)(1), his “long history



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United States v. Parker; United States v. Kimball

of charitable endeavors and public service[,]” and his success in owning and operating several auto-

repair businesses. Kimball’s Br. at 6-8.

       The record demonstrates otherwise. The district court found that Kimball’s history and

characteristics “weigh[ed] in his favor[,]” and specifically noted “his charitable acts, [and] the

successful businesses he has run.” But the district court found other factors more significant, such

as the need for the sentence imposed to reflect the seriousness of the offenses, and the need to

provide just punishment. See 18 U.S.C. § 3553(a)(2)(A). The record therefore reflects that the

district court properly considered Kimball’s history and characteristics under § 3552(a)(1), and

specifically analyzed the factors that Kimball claims it failed to consider.

       Kimball also argues that the district court failed to consider the “need to avoid unwarranted

sentence disparities” under § 3553(a)(6). He asserts that some of his co-conspirators received more

lenient sentences, despite engaging in “at least the same conduct . . . if not[] much more.” Kimball’s

Br. at 20 (emphasis omitted). Again, the record demonstrates otherwise. Two of Kimball’s co-

conspirators received life sentences for their roles in the drug-trafficking operation, the same

effective sentence Kimball received. All of the others, as the district court noted, received lesser

sentences due to their cooperation agreements with the government. Kimball did not have such an

agreement. Moreover, Kimball stands alone among the conspirators as the undisputed kingpin and

mastermind of the cocaine-trafficking scheme, and in hiring others to kill four witnesses. His

sentence therefore rightly reflects the added seriousness of his offenses and the need to provide just

punishment for them. Section 3553(a)(6) cautions district courts to avoid unwarranted sentence

disparities, not warranted ones. The district court properly considered that sentencing factor.

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United States v. Parker; United States v. Kimball

        Finally, Kimball argues that his sentence is substantively unreasonable because “[i]t is hard

to imagine that a sentence of life, plus life, plus 15 years meets [§ 3553(a)’s] goals better than a total

effective sentence of life, plus 25 years”—which was the statutory minimum and the sentence he

requested—because “[b]oth sentences are physically impossible to serve.” Kimball’s Br. at 21. But

we have upheld sentences greater than life imprisonment before, see United States v. Conatser, 514

F.3d 508, 522 (6th Cir. 2008), and the physical impossibility of serving the sentence is not one of

§ 3553(a)’s factors. That section instead instructs the district court to impose a sentence “sufficient,

but not greater than necessary, to comply with” factors such as the need for the sentence imposed

“to reflect the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense[.]” 18 U.S.C. § 3553(a)(2)(A). The district court here found that

Kimball’s offenses, which included leading an enormous drug-trafficking operation and attempting

to kill witnesses, were “very serious,” and that the scope of his criminal activity was “breathtaking.”

The district court therefore did not abuse its discretion in determining that the advisory Guidelines

sentence—consecutive terms of life imprisonment, plus 15 years—was appropriate to provide just

punishment for those crimes.

        The district court’s judgments are affirmed.




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