                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0435n.06

                                           No. 14-5966                                    FILED
                                                                                    Jun 11, 2015
                          UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )    ON APPEAL FROM THE UNITED
v.                                                      )    STATES DISTRICT COURT FOR
                                                        )    THE EASTERN DISTRICT OF
LOUIS ANGELO MARS, SR.,                                 )    KENTUCKY
                                                        )
       Defendant-Appellant.                             )
                                                        )


                                                                                           *
       BEFORE: GRIFFIN and DONALD, Circuit Judges; TARNOW, District Judge.


       PER CURIAM.           Louis Angelo Mars, Sr. (“Mars”), a federal prisoner, appeals the

sentence the district court imposed after he pleaded guilty to a charge of conspiring to distribute

oxycodone.

       Mars submitted a sentencing memorandum to the district court objecting to the

calculation of his criminal history score in the presentence report, asking the court to consider his

troubled upbringing, employment history, and family support, and seeking application of a

contemplated amendment to the United States Sentencing Guidelines that had not yet been

enacted. At the sentencing hearing, counsel for Mars repeated each of these arguments. The

district court sustained the objection to the criminal history calculation and calculated a lowered

Guidelines imprisonment range of 87 to 108 months. The district court also acknowledged


       *
         The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 14-5966
United States v. Mars

reading the sentencing memorandum and agreed that Mars had had a difficult childhood.

However, the court emphasized the serious nature of Mars’s offense and his previous convictions

involving violence and weapons in determining to impose a within-Guidelines sentence of 96

months.   Finally, the court declined to apply the impending amendment to the sentencing

Guidelines, but invited Mars to move for a sentence reduction if the Guidelines were amended.

       On appeal, Mars argues that the district court failed to explain why it rejected his

arguments for leniency, rendering his sentence procedurally and substantively unreasonable.

Mars also points out that retroactive Amendment 782 to USSG § 2D1.1(c) lowers his offense

level from 30 to 28, yielding a Guidelines range of 70 to 87 months of imprisonment.

Accordingly, he seeks a remand to allow the district court to consider his eligibility for a

sentence reduction. The Government argues that Mars’s sentence is reasonable, but agrees that

remand to the district court for consideration of whether Mars is eligible for sentence reduction

under Amendment 782 is proper.

       We review sentences “for reasonableness, which, we have determined, has both

procedural and substantive components.” United States v. Davis, 751 F.3d 769, 773 (6th Cir.

2014). Because Mars did not object below to the procedural error he now raises, we review the

procedural reasonableness of his sentence for plain error. Id. Mars argues that, in United States

v. Wallace, 597 F.3d 794, 804 (6th Cir. 2010), we found plain error in a district court’s failure to

address a defendant’s argument. That case is distinguishable from the one at bar because the

sentencing court there failed to mention any of the relevant sentencing factors. Here, in contrast,

the district court acknowledged the arguments for leniency that Mars raised, but found that the

serious nature of the offense and his violent criminal history outweighed his leniency arguments.

Therefore, Mars has not established that the district court committed plain error.


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No. 14-5966
United States v. Mars

       Mars also argues that his sentence is substantively unreasonable.          We review the

substantive reasonableness of a sentence under an abuse-of-discretion standard. United States v.

Shaw, 707 F.3d 666, 674 (6th Cir. 2013). The court of appeals may, but is not required to,

presume that a within-Guidelines sentence is reasonable. Rita v. United States, 551 U.S. 338,

347 (2007). If an appellate court does presume the reasonableness of a within-Guidelines

sentence, that presumption does not place the burden of persuasion or proof on any particular

party. Id. (clarifying, inter alia, United States v. Brown, 579 F.3d 672 (6th Cir. 2009), which

implies that the burden is on the defendant to show that a different sentence is required in order

to rebut any presumption of reasonableness of a within-Guidelines sentence).

       Defendant argues that a sentence of less than 96 months would have been sufficient to

achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). The fact that a district court does

not give a defendant the specific sentence he sought does not create a cognizable basis for

appeal, especially if the district court followed the mandates of section 3553(a) during

sentencing. United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006). The transcript of the

sentencing hearing indicates that the district judge was concerned with the interests of deterrence

and just punishment when it imposed Mars’s sentence. While we might agree that a shorter

sentence could serve those interests, it is for the district court to determine, in its sound

discretion, what sentence is “sufficient, but not greater than necessary” to meet these interests.

18 U.S.C. § 3553(a). Mars further argues that the district court did not properly account for the

mitigating circumstances in his case. After reviewing the district court record, we cannot say

that the sentence imposed was an unreasonable sentence, regardless of whether it is the sentence

that we might select ourselves.




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No. 14-5966
United States v. Mars

       When an amendment to the Guidelines applies retroactively, “the proper procedure is for

this court to affirm the sentence but to remand for consideration of whether the prisoner is

entitled to a sentence reduction under [18 U.S.C.] § 3582(c).” United States v. Poole, 538 F.3d

644, 646 (6th Cir. 2008). The parties agree that this matter should be remanded to the district

court for consideration of whether Mars is eligible for a sentence reduction under Amendment

782 to the sentencing Guidelines. Accordingly, we affirm the district court’s judgment but

remand for consideration of the availability of a sentence reduction in light of Amendment 782.




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