                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0163n.06

                                             No. 08-4695

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                   FILED
UNITED STATES OF AMERICA,                           )                          Mar 15, 2010
                                                    )                    LEONARD GREEN, Clerk
        Plaintiff-Appellee,                         )
                                                    )
v.                                                  )   ON APPEAL FROM THE UNITED
                                                    )   STATES DISTRICT COURT FOR THE
MARK MORELOCK,                                      )   SOUTHERN DISTRICT OF OHIO
                                                    )
        Defendant-Appellant.                        )
                                                    )

Before: GIBBONS, SUTTON, and WHITE, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. Defendant–appellant Mark Morelock appeals

a 144-month sentence imposed by the United States District Court for the Southern District of Ohio.

Morelock pled guilty to one count of conspiracy to distribute and possess with intent to distribute

100 kilograms or more of marijuana in violation of 21 U.S.C. § 846. On appeal, he raises three

challenges to his sentence: (1) the district court improperly used a prior conviction under 18 U.S.C.

§ 1952 (interstate travel or transportation in aid of racketeering enterprises) as a predicate felony for

finding that Morelock was a career offender under § 4B1.1 of the United States Sentencing

Guidelines; (2) the sentence imposed was substantively unreasonable; and (3) reversal is required

because the district court was unaware that it had discretion to sentence below the range applicable

under § 4B1.1. For the following reasons, we affirm Morelock’s sentence.

                                                   I.
       This case arises out of a conspiracy between Morelock and four co-conspirators to traffic in

large amounts of marijuana. Presentence Report (“PSR”) at 1. The investigation began when a

shipment of marijuana packed in an inflatable “fun castle” was intercepted in North Carolina. PSR

at 4. The package was addressed to an address in Wellston, Ohio. PSR at 4. Agents arranged for

a controlled delivery, and Morelock accepted the package, along with two co-defendants. PSR at

4. Morelock admitted to arranging the transport. PSR at 4. As agents secured the house to execute

a search warrant, a second commercial delivery arrived containing an identical, marijuana-filled “fun

castle.” PSR at 4. In a nearby hotel, investigators found two further co-conspirators with documents

noting the delivery information and cost of the two shipments and who were tasked with collecting

payment on behalf of the Texas supplier. PSR at 4. Morelock also admitted that he was the intended

recipient and distributor of the marijuana, and a search of his residence uncovered five firearms,

$13,660 in cash, and coolers containing green vegetation and drug-sales paraphernalia. PSR at 4.

The two “fun castles” yielded 480 kilograms of marijuana. PSR at 5.

       In a superseding indictment, filed on May 29, 2008, the grand jury charged Morelock and

four co-defendants with various drug offenses. DE 40. Specifically, Morelock was indicted on one

count of conspiracy to distribute and possess with intent to distribute 100 kilograms or more of

marijuana and one count of attempt to distribute more than 100 kilograms of marijuana, both in

violation of 21 U.S.C. § 846. DE 40 at 1–2. Morelock was also made subject to a forfeiture under

21 U.S.C. § 853(a)(1) and (2). DE 40 at 3. Morelock pled guilty to the conspiracy count, which

carried a minimum five-year and maximum forty-year term of imprisonment, and submitted to the

forfeiture. DE 64 at 1, 5.



                                                 2
       In the plea agreement, Morelock promised to testify and provide a full statement to the

government regarding all matters pertaining to the superseding indictment or any other unlawful

activity in which he may have been involved. DE 64 at 2. The parties also stipulated to the quantity

of drugs involved, resulting in a base offense level of 28, and a two-level enhancement pursuant to

U.S.S.G. § 2D1.1(b) for possession of a firearm in connection with the drug conspiracy. DE 64 at

3. The government agreed to file a motion pursuant to U.S.S.G. § 3E1.1(b) requesting a three-level

downward departure for timely notification and acceptance of responsibility. DE 64 at 4. Finally,

with respect to career-offender status, the agreement stated:

       Pursuant to U.S.S.G. § 4B1.1, [Morelock] understands that it is the position of the
       United States that the defendant is a career offender, in light of the fact the instant
       offense is a controlled substance offense and he has two prior convictions for a crime
       of violence and/or a controlled substance offense. If the Court finds the defendant
       to be a career offender, the defendant further understands that his advisory guideline
       will be an offense level 34, criminal history category VI, prior to any reduction for
       acceptance of responsibility.

DE 64 at 4–5. Morelock retained the right to appeal any application of § 4B1.1. DE 64 at 5.

       The PSR found that Morelock’s career-offender status and the applicable maximum penalty

of twenty-five years or more under § 846 required a base offense level of 34, pursuant to U.S.S.G.

§ 4B1.1(b)(1)(B), and a criminal history category of VI. PSR at 7, 11. The three-level downward

departure for acceptance of responsibility resulted in an adjusted offense level of 31 and an

applicable Guidelines range of 188 to 235 months of imprisonment and a term of supervised release

between four and five years. PSR at 7, 11, 14. Morelock objected to the application of the career-

offender status on the grounds that “as applied to defendant [it] fails to properly reflect [18 U.S.C.]

§ 3553(a) considerations, reflects unsound judgment, and does not treat the defendant’s



                                                  3
characteristics in the proper way.” Addendum to PSR at 1. He also objected to the use of the § 1952

conviction as a qualifying “controlled substance offense” because it did not satisfy the § 4B1.1

requirement that the two predicate convictions occurred within fifteen years of the present

conviction. Id. Morelock further noted that, without applying § 4B1.1, his applicable Guidelines

range would be 87 to 108 months. Id. The probation officer ultimately recommended a sentence

of 188 months, the minimum Guidelines sentence based on the § 4B1.1 career offender

enhancement. Sentencing Recommendation at 1.

       The government subsequently filed a U.S.S.G. § 5K1.1 motion requesting a downward

departure from the Guidelines range due to Morelock’s substantial assistance in the government’s

prosecution of his four co-conspirators. DE 92. The government recommended that Morelock

receive a sentence within the Guideline range of 100 to 125 months based on an offense level of 24

and a criminal history category of VI. DE 92 at 1–2. Morelock moved for a downward departure

on the grounds that his criminal history “significantly over-represents” the likelihood that he will

re-offend and that he has precancerous Barrett’s Esophagus (a change in cell structure in the

esophagus caused by acid reflux).      DE 93.     Morelock argued: (1) that the career-offender

enhancement was advisory after United States v. Booker, 543 U.S. 220 (2005); and (2) that the

district court had discretion to significantly depart downward despite the qualifying predicate

convictions. DE 93 at 2–4.

       That Morelock has considerable experience trafficking in marijuana between Texas and Ohio

is readily apparent. See PSR at 8–11; DE 92 at 2–3. He has six prior drug-related convictions, five

of which involved trafficking in marijuana between Texas and Ohio. The convictions that the



                                                 4
government and the PSR found to be qualifying predicate offenses under § 4B1.1 were: (1) a 1992

conviction for a violation of 18 U.S.C. § 1952 involving purchasing and transporting from Texas to

Ohio numerous loads of 100 to 500 pounds of marijuana; and (2) convictions in 1996 for conspiracy

to possess with intent to distribute and to distribute marijuana and possession with intent to distribute

marijuana, relating to the distribution of hundreds of pounds of marijuana in Ohio over a period of

several months.1 PSR at 8–11.

        At the sentencing hearing, the district court first addressed whether Morelock satisfied the

requirements of § 4B1.1. See DE 130 at 4. Morelock’s counsel asserted in writing that the objection

was based on the timing of the prior convictions but retracted this argument at the hearing:

        I think if Mr. Morelock is incarcerated during the 15-year period, the case law makes
        it clear that he qualifies as a Career Offender. And I think that the convictions set
        forth in the Presentence Report indicate that he has two convictions within the 15-
        year period if you count the time he was incarcerated. So, I think technically he is
        going to qualify as a Career Offender.

DE 130 at 5. The district court agreed and asked counsel whether “the Probation Officer correctly

analyzed [the career-offender] determination in this case.” DE 130 at 6. Morelock’s attorney

answered, “I agree,” and turned his attention to arguing that a downward departure from the

Guidelines range resulting from career-offender determination was warranted. DE 130 at 6. After

hearing argument on this point, the district court agreed with the government’s position that

Morelock was a career offender with multiple convictions for drug trafficking and that he had



        1
        Morelock’s other prior drug convictions were: (1) in 1985, drug abuse for possessing
cocaine, a fourth-degree felony under Ohio state law; (2) in 1987, aggravated possession of
marijuana under Texas state law after officers stopped him while transporting 113 pounds of
marijuana from Texas to Ohio; and (3) in 1998, conspiracy to commit aggravated possession of
marijuana under Texas state law for buying 200 pounds of marijuana from an undercover agent.

                                                   5
already received considerable leniency in sentencing by not being charged with available

enhancements that would raise the mandatory minimum to ten years. DE 130 at 7–11. The district

court acknowledged that “the Court does have authority, in some circumstances, to depart downward

from the guidelines” but found that the criminal history and offense level did not “overrepresent[]

the seriousness of [Morelock’s] criminal history” in such a way as to warrant departure. Id. at 10.

The district court noted that Morelock had drug convictions dating back to the mid-1980s, that this

was his third federal drug offense, and that he was likely to re-offend. Id. at 11.

       The district court also granted the government’s § 5K1.1 motion for a downward

departure—to a base offense level of 26, resulting in a Guidelines range of 120 to 150 months—on

the basis of substantial assistance. But the court did not depart to the extent argued by the parties

because the indicted co-conspirators were customers and couriers, rather than the Texas suppliers.

DE 130 at 22–23. After hearing from the attorneys regarding the § 3553(a) factors, the district court

addressed those factors in detail, see DE 130 at 30–33, and sentenced Morelock to 144 months of

incarceration, five years of supervised release, and payment of a $25,000 fine, see DE 96 at 2–4. At

that time, in response to the district court’s question of whether any legal impediments to the

sentence existed, Morelock’s attorney answered in the negative. DE 130 at 38. Morelock timely

appealed. DE 98.

                                                 II.

       We review de novo a district court’s determination that a prior conviction constitutes a

predicate offense for career offender purposes under § 4B1.1. United States v. Baker, 559 F.3d 443,

450 (6th Cir. 2009) (quoting United States v. Skipper, 552 F.3d 489, 491 (6th Cir. 2009)). Because



                                                  6
Morelock did not raise the objection that his designation as career offender was invalid because his

§ 1952 conviction is not a predicate “controlled substance offense” under § 4B1.1 until his appeal,

we may not “set aside the district court’s sentence unless the court plainly erred in so designating

[him].” United States v. Alexander, 543 F.3d 819, 823 (6th Cir. 2008) (citing United States v. Bostic,

371 F.3d 865, 872–73 (6th Cir. 2004) (“If a party does not clearly articulate any objection and the

grounds upon which the objection is based, when given [a] final opportunity [to] speak, then that

party will have forfeited its opportunity to make any objections not previously raised and thus will

face plain error review on appeal.”)). In demonstrating plain error,

        a defendant must show (1) that an error occurred in the district court; (2) that the
        error was plain, i.e., obvious or clear; (3) that the error affected [the] defendant’s
        substantial rights; and (4) that this adverse impact seriously affected the fairness,
        integrity or public reputation of the judicial proceedings.

Alexander, 543 F.3d at 822 (quoting United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)

(alteration in original)). We hold that the district court committed no error in sentencing Morelock.

        Section 4B1.1(a) of the Guidelines states:

        A defendant is a career offender if (1) [he] was at least eighteen years old at the time
        [he] committed the instant offense of conviction; (2) the instant offense of conviction
        is a felony that is either a crime of violence or a controlled substance offense; and (3)
        the defendant has at least two prior felony convictions of either a crime of violence
        or a controlled substance offense.

Morelock does not dispute the district court’s findings on the first and second elements, but only

whether he has two qualifying predicate offenses as required by § 4B1.1(a)(3). A “controlled

substance offense” is defined as “an offense under federal or state law, punishable by imprisonment

for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent


                                                   7
to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). Simple possession

of a controlled substance, “without the proof beyond a reasonable doubt of the requisite intent to

manufacture, import, export, distribute, or dispense is not a controlled substance offense.” United

States v. Montanez, 442 F.3d 485, 488 (6th Cir. 2006) (quotation marks omitted).

       Section 1952 is a statute that encompasses both qualifying and non-qualifying conduct under

§ 4B1.2(b).2 Section 1952(a) criminalizes travel interstate in furtherance of “unlawful conduct,”

which § 1952(b)(1) defines to include, inter alia, “any business enterprise involving . . . narcotics

or controlled substances.” The Eleventh and First circuits have found that § 1952 convictions can

qualify as predicate “controlled substance offenses” or “crimes of violence” under § 4B1.1 if the

underlying conduct falls within the definitions of those terms contained in U.S.S.G. § 4B1.2. See

United States v. Rosquete, 208 F. App’x 737, 740–41 (11th Cir. 2006) (per curiam) (finding a § 1952

conviction involving the trafficking of narcotics to be a predicate offense under § 4B1.1); United

States v. Winter, 22 F.3d 15, 19–20 (1st Cir. 1994) (finding that a § 1952 conviction for fixing horse


       2
           Section 1952 states, in relevant part:
          (a) Whoever travels in interstate or foreign commerce or uses the mail or any facility
          in interstate or foreign commerce, with intent to—
                  (1) distribute the proceeds of any unlawful activity; or
                  (2) commit any crime of violence to further any unlawful activity; or
                  (3) otherwise promote, manage, establish, carry on, or facilitate the
                  promotion, management, establishment, or carrying on, of any unlawful
                  activity,
          and thereafter performs or attempts to perform—
                  (A) an act described in paragraph (1) or (3) shall be fined under this title,
                  imprisoned not more than 5 years, or both; or
                  (B) an act described in paragraph (2) shall be fined under this title,
                  imprisoned for not more than 20 years, or both, and if death results shall be
                  imprisoned for any term of years or for life.
That section further defines “unlawful activity” to include “any business enterprise involving
. . . narcotics or controlled substances.” 18 U.S.C. § 1952(b)(1).

                                                   8
races is not a qualifying “crime of violence” under §§ 4B1.1 and 4B1.2). Therefore, if Morelock’s

§ 1952 conviction falls under this definition, it would be a qualifying predicate crime for purposes

of § 4B1.1.

       In determining whether a prior conviction under a statute such as § 1952 is a “controlled

substance offense,” we follow the approach laid out by the Supreme Court in Shepard v. United

States, 544 U.S. 13 (2005). See United States v. Galloway, 439 F.3d 320, 324 (6th Cir. 2006). Thus,

“[i]f . . . ‘the relevant statute of conviction does not supply a clear answer to [whether the defendant

committed a controlled substance offense] the sentencing court may consult the indictment and either

the jury instructions or plea agreement for the specific conduct with which the defendant was

charged in order to appropriately characterize the offense.’” Id. at 323 (quoting Martin, 378 F.3d

at 581) (alteration in original); see also Montanez, 442 F.3d at 489 (same). When considering the

underlying conduct, the district court may not look only to the factual description of the offense

contained in the PSR. See United States v. Wynn, 579 F.3d 567, 575–76 (6th Cir. 2009). In this

case, the PSR was the only evidentiary record of the factual circumstances of Morelock’s § 1952

conviction. However, because both Morelock’s trial and appellate counsel conceded that the conduct

underlying his § 1952 conviction was drug trafficking, it was not plain error for the district court to

conclude that the § 1952 conviction was a qualifying “controlled substance offense” under § 4B1.2

and designate Morelock a career criminal under that provision. Such a designation neither affected

Morelock’s substantial rights nor affected the fairness, integrity, or reputation of the sentencing

proceedings.




                                                   9
       Accordingly, we hold that the district court committed no plain error in finding Morelock’s

§ 1952 conviction to be a qualifying “controlled substance offense” under § 4B1.1 and affirm the

district court’s designation of Morelock as a career offender.

                                                  III.

       The district court’s “task is to impose ‘a sentence sufficient, but not greater than necessary,

to comply with the purposes’ of § 3553(a)(2).” United States v. Klups, 514 F.3d 532, 536 (6th Cir.

2008) (quoting 18 U.S.C. § 3553(a)). We review a district court’s sentencing determination “‘under

a deferential abuse-of-discretion standard,’ for reasonableness,” United States v. Lalonde, 509 F.3d

750, 769 (6th Cir. 2007) (quoting Gall v. United States, 552 U.S. 38, 40 (2007)), “the district court’s

factual findings for clear error[,] and its legal conclusions de novo,” United States v. Bolds, 511 F.3d

568, 579 (6th Cir. 2007) (citing Lalonde, 509 F.3d at 763). Reasonableness review of sentencing

“has two components: procedural and substantive.” Bolds, 511 F.3d at 578 (citing Gall, 552 U.S.

at 50). However, because Morelock only challenges the substantive reasonableness of his sentence

on appeal, we need only address this prong.3 See Def.’s Br. at 8, 11.




       3
         Morelock argues that his sentence is unreasonable for a number of reasons, several of which
are readily dismissed. Given the preceding discussion, we need not again address his assertions that
§ 1952 was an improper predicate conviction for career-offender purposes and led to a
miscalculation of the applicable Guidelines range. See Def.’s Br. at 11. Furthermore, we are
jurisdictionally barred from reviewing Morelock’s appeal to the extent that he argues that the district
court erred in declining to grant the government’s § 5K1.1 motion in full. See United States v.
Curry, 536 F.3d 571, 573 (6th Cir. 2008) (“When the district court grants a downward departure for
substantial assistance and the defendant's claim on appeal goes only to the extent of the departure,
this Court has no jurisdiction over the appeal.” (internal quotation marks and citation omitted)). We
therefore limit our review to the “overall reasonableness of the sentence.” See United States v.
Gapinski, 561 F.3d 467, 475 n.3 (6th Cir. 2009).

                                                  10
        In evaluating substantive reasonableness, we examine “whether the length of the sentence

is reasonable in light of the § 3553(a) factors.” United States v. Tate, 516 F.3d 459, 469 (6th Cir.

2008). To that end, we must “take into account the totality of the circumstances, including the extent

of any variance from the Guidelines range.” Gall, 552 U.S. at 51. “A sentence is substantively

unreasonable where the district court ‘select[ed] the sentence arbitrarily, bas[ed] the sentence on

impermissible factors, . . . or [gave] an unreasonable amount of weight to any pertinent factor.’”

United States v. Recla, 560 F.3d 539, 549 (6th Cir. 2009) (alteration in the original) (quoting United

States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005)).

        In reviewing Morelock’s sentence, we “consider the extent of the deviation, but must give

due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent

of the variance.” Gall, 552 U.S. at 51. The record shows that the district court carefully considered

each of the § 3553(a) factors and Morelock’s proposed justifications for a variance and gave detailed

reasons for imposing the sentence that it did. The district court addressed Morelock’s age and

medical history, his wife’s illness, and his productive work history. DE 130 at 29–33. It considered

the extent of his cooperation with the authorities and whether the career offender status

overrepresented his criminal history. Id. at 7–11, 22–23. The district court found that Morelock’s

cooperation had been important, but had led only to the prosecution of two of his customers and two

relatively unimportant couriers. Id. at 22–23. The district court cited the lack of prosecution of more

important figures in the drug trade as its reason for not granting in full the government’s § 5K1.1

motion to depart to a base offense level of 24. See id. at 23. The district court further determined

that Morelock’s history of involvement in marijuana trafficking in Ohio over several decades



                                                   11
demonstrated that he was likely to offend again and that previous lenient sentences had not provided

a sufficient deterrent. Id. at 30. Nevertheless, the district court did grant a significant downward

departure from a base offense level of 34 to 26, and imposed a sentence 44 months less than the

sentence recommended by the PSR. Sentencing Recommendation at 1; DE 96 at 2; DE 130 at

22–23, 33.

       Given the district court’s thorough consideration of the § 3553(a) factors, the arguments for

a variance raised by Morelock, and the Guidelines range of 188 to 235 months for Morelock’s

offense level and criminal history, we cannot conclude that the district court abused its discretion

by sentencing Morelock to 144 months. Nor can we say that the sentence was arbitrarily imposed.

It was only slightly harsher than the sentence sought by the government—and advocated by

Morelock—in its § 5K1.1 motion. The district court found that Morelock was entitled to a

downward departure for substantial assistance but not to the full extent urged in the motion. Id. at

22–23. A eight offense-level downward departure rather than a ten-level departure is consistent

with this reasoning and, therefore, not arbitrary. We consequently hold that the sentence imposed

was reasonable and affirm on that ground.

                                                 IV.

       “A district court’s failure to grant a downward departure may only be reviewed upon appeal

if the lower court erroneously believed that it lacked authority to grant such a departure as a matter

of law.” United States v. Cook, 238 F.3d 786, 790–91 (6th Cir. 2001) (citing United States v.

Owusu, 199 F.3d 329, 349 (6th Cir. 2000)). On appeal, we presume the district court’s awareness

of its discretion to depart. See United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995). Furthermore,



                                                 12
“while we [have] held that a sentencing court may impose a sentence below the career offender

guideline based on a policy disagreement with that guideline . . . it is certainly not required to do so.”

United States v. Smith, No. 08-1494, 2009 WL 3486631, at *3 (6th Cir. Oct. 29, 2009) (citing United

States v. Michael, 576 F.3d 323, 327 (6th Cir. 2009)) (emphasis in original).

        Morelock’s representation that the district court was unaware of its discretion to depart

downward is inaccurate. The district court explicitly took notice of its discretion to depart from the

Guidelines range produced by applying § 4B1.1 and equally clearly declined to do so. See DE 130

at 4–11. After hearing arguments from both parties, the district court stated:

        Yes, the Court does have the authority, in some circumstances, to depart downward
        from the guidelines, but here the controlling question would be whether or not the
        criminal history category and the total offense level as calculated overrepresents the
        seriousness of the defendant’s criminal history. And I have no hesitation in
        concluding that it does not. Mr. Morelock seems to be the kind of offender that falls
        squarely within the intention of the guidelines in creating this special category. He
        is, indeed, a career offender, and he is properly categorized as such.

DE 130 at 10. The record demonstrates, therefore, that Morelock’s assertion that the district court

was unaware of its discretion is inaccurate, and, consequently, precludes appellate review of this

claim. See Cook, 238 F.3d at 790–91.

                                                   V.

        For the foregoing reasons, we affirm the sentence imposed by the district court.




                                                   13
