                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0039n.06

                         Nos. 13-6624, 14-5136, 14-6105, and 15-5140

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA              )                                             FILED
                                      )                                       Jan 22, 2016
     Plaintiff-Appellee,              )                                   DEBORAH S. HUNT, Clerk
                                      )
v.                                    )
                                                                ON APPEAL FROM THE
                                      )
                                                                UNITED STATES DISTRICT
MICHAEL ANDRE SNOW, SR.; ASHUN SINCER )
                                                                COURT FOR THE EASTERN
LEWIS; DEWAYNE ALLEN THOMAS; and )
                                                                DISTRICT OF KENTUCKY
CHARLES LEE JONES,                    )
                                      )
     Defendants-Appellants.           )




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

       KETHLEDGE, Circuit Judge. Michael Snow, Ashun Lewis, Dewayne Thomas, and

Charles Jones pled guilty to several cocaine-related charges. The district court sentenced Snow

and Lewis to enhanced mandatory-minimum sentences pursuant to 21 U.S.C. § 841(b)(1)(B)

because they had prior drug-related convictions. The district court sentenced Thomas and Jones

as career offenders under the Sentencing Guidelines. All four challenge their sentences. The

government concedes that the district court should not have sentenced Thomas as a career

offender, so we remand his case for resentencing. As to the remaining defendants, we affirm.

                                                I.

       Michael Snow pled guilty to one count of possessing 28 grams or more of cocaine base

and one count of possessing marijuana with the intent to distribute, both in violation of 21 U.S.C.

§ 841(a), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C.
Nos. 13-6624, 14-5136, 14-6105, and 15-5140
United States v. Michael Andre Snow, Sr., et al

§ 922(g). The United States filed a notice, pursuant to 21 U.S.C. § 851, that Snow faced

enhanced mandatory-minimum sentences for his drug offenses because he had a prior state-court

conviction for drug possession. The district court sentenced Snow to ten-year prison terms on

each count, to run concurrently.

       Ashun Lewis pled guilty to one count of conspiring to distribute 28 grams or more of

cocaine base and one count of distributing the same, both in violation of 21 U.S.C. § 841(a).

As with Snow, the United States filed a § 851 notice of Lewis’s prior convictions: 2007 and

2009 convictions for drug possession. The district court likewise sentenced Lewis to ten-year

prison terms on each count, to run concurrently.

       Like Lewis, Dewayne Thomas pled guilty to one count of conspiring to distribute

28 grams or more of cocaine base, and one count of distributing the same. Thomas had prior

state-court convictions for burglary and drug trafficking.     As a result, and over Thomas’s

objection, the court sentenced him as a career offender under § 4B1.1 of the Sentencing

Guidelines.   The court then granted the United States’s § 5K1.1 motion for a downward

departure from the applicable Guidelines range and sentenced Thomas to concurrent 156-month

terms on each count, with 24 months to run concurrently with a state court sentence that Thomas

was already serving.

       Charles Jones pled guilty to seven crimes related to the distribution of cocaine or cocaine

base, all in violation of 21 U.S.C. §§ 841(a), 846. The district court sentenced Jones as a career

offender under the Guidelines.     The court also granted the United States’s motion for a

downward departure and sentenced Jones to 168 months’ imprisonment.

       These appeals followed.




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Nos. 13-6624, 14-5136, 14-6105, and 15-5140
United States v. Michael Andre Snow, Sr., et al

                                                  II.

                                                  A.

       Snow and Lewis argue that their ten-year sentences violate the Eighth Amendment.

Under 21 U.S.C. § 841(b)(1)(B), a defendant who is convicted of possessing with the intent to

distribute 28 grams or more of cocaine base must be sentenced to a minimum of five years in

prison. The sentence increases to ten years if the defendant has a prior felony drug conviction

and the prosecutor files a notice of that prior conviction with the district court.           Id.

§§ 841(b)(1)(B), 851.

       Here, the government filed the required notices detailing Snow’s and Lewis’s prior

felony drug convictions. Based on those prior convictions, the district court sentenced both

Snow and Lewis to mandatory-minimum ten-year sentences. Both defendants now contend that

their sentences are cruel and unusual. We review de novo whether they were. See United States

v. Jones, 569 F.3d 569, 573 (6th Cir. 2009).

       In non-capital cases, the Eighth Amendment forbids only an “extreme disparity between

crime and sentence.” Id. (citation and quotation marks omitted). As relevant here, we have

already held that ten-year sentences for possession with the intent to distribute 19.65 and 26.92

grams of cocaine base did not violate the Eighth Amendment. See United States v. Blewett,

746 F.3d 647, 649 (6th Cir. 2013) (en banc). Snow and Lewis possessed larger amounts of

cocaine base (42.1 and 47.13 grams, respectively) than the Blewett defendants did. Hence, their

Eighth Amendment challenge is foreclosed by precedent.

       Snow and Lewis contend nevertheless that a 2013 memo from the Attorney General

shows that their sentences are cruel and unusual. In the memo, the Attorney General directs the

U.S. Attorneys to “decline to file a [§ 851 notice] unless the defendant is involved in conduct


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Nos. 13-6624, 14-5136, 14-6105, and 15-5140
United States v. Michael Andre Snow, Sr., et al

that makes the case appropriate for severe sanctions.” R. 744-1. The Attorney General also

provides a list of factors to consider when deciding whether to file a § 851 notice. Id. at 3. But

the memo by its express terms does not create any enforceable rights. See United States v. Nagy,

760 F.3d 485, 490 (6th Cir. 2014); R. 744-1 at n.2. The memo therefore cannot help the

defendants’ Eighth Amendment argument here.

                                                  B.

       Snow argues that the district court should not have used his state-court conviction in 2002

to enhance his mandatory-minimum sentence to ten years. The reason, Snow asserts, is that his

waiver of his right to appointed counsel in the 2002 case (Snow had retained counsel at the time)

was not knowing and voluntary.

       Snow cannot attack his 2002 conviction collaterally, however, by arguing that his waiver

of rights was unknowing or involuntary. Custis v. United States, 511 U.S. 485, 496 (1994).

Instead he can challenge the 2002 conviction only by arguing that he lacked counsel altogether in

the 2002 case. United States v. Reed, 141 F.3d 644, 652 (6th Cir. 1998). But Snow was

undisputedly represented by counsel throughout his state-court proceedings, including his guilty

plea. R. 877 at 4. That fact itself defeats his claim. Moreover, even if, as Snow contends, the

waiver-of-counsel form was unclear as to whether he had a right to appointed (as opposed to

retained) counsel at trial, the state judge clearly explained Snow’s rights at the plea hearing:

“[Y]ou have the right . . . to be represented by an attorney. If you cannot afford an attorney, one

will be appointed to represent you.” Id. at 7. Hence even the premise of Snow’s argument is

incorrect.




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Nos. 13-6624, 14-5136, 14-6105, and 15-5140
United States v. Michael Andre Snow, Sr., et al

                                                  C.

       Lewis argues that his prior drug convictions cannot be used to enhance his sentence

because the district court did not follow the procedure required by § 851. That section requires

the district court to ask the defendant “whether he affirms or denies that he has been previously

convicted as alleged in the [§ 851 notice].” 21 U.S.C. § 851(b). The government concedes that

the district court never gave Lewis a chance to deny his prior convictions. The government

contends, however, that we should review the omission for plain error because Lewis did not

object at the sentencing hearing.      Lewis responds that we should use the more favorable

harmless-error standard because § 851 places an affirmative duty on the court to conduct the

colloquy. See United States v. Hill, 142 F.3d 305, 313 (6th Cir. 1998). We need not choose

between the standards here, however, because the result is the same under either.

       A district court’s failure to conduct the § 851 colloquy is harmless when the defendant is

statutorily barred from challenging his prior conviction. Id. Section 851 bars defendants from

challenging the “validity of any prior conviction” that occurred more than five years before the

government filed its § 851 notice. 21 U.S.C. § 851(e). The United States filed its § 851 notice

on November 6, 2012, see R. 284, so Lewis cannot challenge the validity of his February

2007 conviction for drug possession.

       Lewis responds that § 851(e) does not apply here because he challenges the nature of his

2007 conviction rather than its validity. Specifically, Lewis contends that his 2007 conviction

was not “punishable by more than one year” in prison and thus is not a “felony drug offense” that

would trigger an enhanced penalty here. See 21 U.S.C. § 802(44). At all relevant times,

however, Lewis’s conviction was punishable by more than a year in prision. See Ky. Rev. Stat.




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Nos. 13-6624, 14-5136, 14-6105, and 15-5140
United States v. Michael Andre Snow, Sr., et al

§§ 218A.1415 (2007), 218A.1415 (2011), 532.060. His 2007 conviction therefore can be used to

trigger an enhanced penalty here.

                                                  D.

       Thomas challenges the district court’s designation of him as a career offender under

U.S.S.G. § 4B1.1. Specifically, Thomas argues that his state-court conviction for burglary was

not one for a “crime of violence” under Johnson v. United States, 135 S. Ct. 2551 (2015). The

government agrees.    We therefore vacate Thomas’s sentence and remand for resentencing,

without reaching his argument that his federal sentence should run concurrent with his state one.

                                                  E.

       Jones seeks resentencing in light of Amendment 782 to the Guidelines, which lowered

the offense level for most drug convictions by two levels. But Jones’s sentence was based on the

career offender Guidelines, U.S.S.G. § 4B1.1, which were not affected by Amendment 782.

Jones cannot receive a sentence reduction based on Amendment 782 because the amendment did

not lower his applicable sentencing range. See United States v. Webb, 760 F.3d 513, 518-19 (6th

Cir. 2014); 18 U.S.C. § 3582(c)(2).

                                        *         *     *

       We affirm the judgments of the district court in Nos. 13-6624, 14-5136, and 15-5140.

We vacate the sentence in No. 14-6105 and remand for resentencing.




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