           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                      File Name: 17a0212n.06

                                      No. 16-2068

                     UNITED STATES COURT OF APPEALS
                          FOR THE SIXTH CIRCUIT

                                                                             FILED
                                                                         Apr 11, 2017
UNITED STATES OF AMERICA,                        )                  DEBORAH S. HUNT, Clerk
                                                 )
      Plaintiff-Appellee,                        )
                                                 )
v.                                               )    On Appeal from the United States
                                                 )    District Court for the Eastern
RODOLFO MORENO,                                  )    District of Michigan
                                                 )
      Defendant-Appellant.                       )
                                                 )
_________________________________/

      Before: GUY, SILER, and DONALD, Circuit Judges.

      RALPH B. GUY, JR., Circuit Judge. Defendant, Rodolfo Moreno, appeals his

sentence as a career offender. We affirm.

                                            I.

      Defendant has committed multiple drug offenses dating back to at least 2004.

While he was serving home confinement following conviction for conspiring to distribute

crack cocaine and marijuana, he purchased heroin from Bradley Atan. When an officer

began to follow Atan’s car, Atan led the officer on a high-speed chase that culminated in

an officer apprehending defendant on foot. Officers found a small quantity of heroin on
Case No. 16-2068                                                                            2
United States v. Moreno
defendant, and roughly 75 grams of heroin in and around baggies he dropped during the

pursuit.

       Defendant pleaded guilty to conspiracy to distribute heroin, 21 U.S.C. § 846, and

possession with intent to distribute heroin, 21 U.S.C. § 841(a)(1). Defendant did not seek

a plea agreement because he intended to challenge the prosecution’s position that he

qualified as a career offender under the sentencing guidelines. The probation officer

recommended a guidelines range based on his career offender status, and defendant

objected.

       The district court addressed this and defendant’s other objections to the PSR,

overruling them and finding that he qualified as a career offender. The district court

noted that, during a sentencing in 2008, a judge had “found [defendant] to be a career

offender . . . on the same criminal record that is before this Court.” The district court

sentenced defendant at the bottom of the guidelines to 151 months’ imprisonment and

four years of supervised release. Defendant appeals, renewing his objection to career

offender classification and newly challenging the constitutionality of the career offender

guidelines.

                                             II.

       We review the district court’s sentence for reasonableness under an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). “A district court

abuses its discretion in the sentencing context if it ‘commit[s a] significant procedural

error,’ ‘selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to

consider relevant sentencing factors, or gives an unreasonable amount of weight to any
Case No. 16-2068                                                                           3
United States v. Moreno
pertinent factor.” United States v. Collins, 828 F.3d 386, 388 (6th Cir. 2016) (alterations

in original) (citations omitted). We review the district court’s legal interpretations of the

guidelines de novo, and its factual findings for clear error. United States v. Brooks, 628

F.3d 791, 796 (6th Cir. 2011).

       Because defendant raises his constitutional challenge to the career offender

guidelines for the first time on appeal, we review it for plain error affecting his

substantial rights. United States v. Yancy, 725 F.3d 596, 600 (6th Cir. 2013).

                                            III.

       a. Career Offender Status

       Defendant first contends that the district court erred in relying on a 2008 career-

offender sentence because the previous sentencing court wrongly applied the

enhancement. Section 4A1.2(a)(2) of the Sentencing Guidelines provides:

       If the defendant has multiple prior sentences, determine whether those
       sentences are counted separately or treated as a single sentence. Prior
       sentences always are counted separately if the sentences were imposed for
       offenses that were separated by an intervening arrest (i.e., the defendant is
       arrested for the first offense prior to committing the second offense). If
       there is no intervening arrest, prior sentences are counted separately unless
       (A) the sentences resulted from offenses contained in the same charging
       instrument; or (B) the sentences were imposed on the same day. Treat any
       prior sentence covered by (A) or (B) as a single sentence.

       Defendant is correct. He committed his first qualifying offense on December 27,

2005; his second on January 24, 2006; and his third on February 28, 2006. His arrest for

the December offense occurred on the same day as his arrest for the February offense –

February 28, 2006. Officers did not arrest defendant for his January offense until April

12, 2006.    The sentences for all three offenses were imposed on August 4, 2006.
Case No. 16-2068                                                                           4
United States v. Moreno
Although defendant was cited for violation of a city marijuana code on February 10,

2006, this does not constitute an intervening arrest for purposes of § 4A1.2(a)(2), United

States v. Powell, 798 F.3d 431, 437 (6th Cir. 2015), and no intervening arrest separated

his single sentence for the three preceding offenses. Accordingly, defendant had only

one qualifying predicate offense at the time of his 2008 federal sentencing and was not a

career offender. Insofar as the district court below designated defendant a career offender

based on his incorrect 2008 designation as such, it erred.

       But this does not end our inquiry. Defendant’s 2008 sentence qualifies as a

predicate offense for career offender purposes.         The district court was aware of

defendant’s prior state offenses and his 2008 federal offense, and defendant concedes that

the district court correctly scored him as a career offender below.         That being so,

defendant’s guidelines range was correctly calculated at 151 to 188 months.

       Defendant speculates that the district court’s reference to his erroneous 2008

career offender status “creates some uncertainty in the record about what sentence the

district court would have imposed . . . had it properly understood the scoring of his

criminal history.”   However, the district court’s thorough discussion of defendant’s

criminal history and the circumstances of this case make it clear that defendant’s

commission of a drug offense while under sentence for a prior drug offense was decisive

in crafting his sentence. A prior court’s sentencing error is not imputed to a later district

court where it had other correct bases for designating defendant a career offender. Any

such error is harmless. Id. at 441 (harmless error where district court correctly calculates

guidelines range despite a technical scoring error).
Case No. 16-2068                                                                         5
United States v. Moreno
       b. Constitutional Challenge

       Defendant next argues that the career offender guidelines violate his Fifth

Amendment rights to equal protection and freedom from deprivation of liberty without

due process. Defendant raises myriad perceived shortcomings of the guidelines generally

and career offender guidelines specifically, some conceded by the Sentencing

Commission. See U.S. Sentencing Commission, Fifteen years of Guideline Sentencing:

An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals

of Sentencing Reform (2004); U.S. Sentencing Commission, Report to the Congress:

Career Offender Sentencing Enhancements, 25-45 (2016).

       These are matters for the political branches, not the courts. After United States v.

Booker, 543 U.S. 220 (2005), the sentencing guidelines are advisory rather than

mandatory. District courts thus enjoy substantial discretion in matters of sentencing, and

may even depart from the guidelines “based on articulated policy disagreements in a

range of contexts.” United States v. Kamper, 748 F.3d 728, 741 (6th Cir. 2014). But we

have rejected the notion that district courts must depart downward from a career guideline

sentence, recognizing that “district courts are best positioned – at least in the first

instance – to sift through the facts of an individual case and determine an appropriate

sentence for each defendant.” United States v. Cooper, 739 F.3d 873, 883 (6th Cir.

2014). Although defendant raises issues concerning the career offender guidelines in

general, he has not alleged a lack of due process or violation of equal protection in this

case, and thereby fails to establish plain error.

       AFFIRMED.
