*1 added). 5G1.3(a) here, (emphasis And three Rutherford committed his bank-
fraud offenses while on release after sen-
tencing pending self-surrender in a
separate federal case. Rutherford there-
fore received the sentence advised
guidelines, presented any and he has not error —if
evidence the court’s indeed
there one—affected his substantial Olano,
rights. See United States 123 L.Ed.2d (1993) (“It is the defendant rather than
the Government who bears the burden of
persuasion respect prejudice.”); Fears, Fed.Appx. reasons,
For these we affirm. America,
UNITED STATES of
Plaintiff-Appellee, DOUGLAS,
Chavis Defendant-
Appellant.
No. 13-6000. Appeals,
United States Court of
Sixth Circuit.
April 2014.
CLAY, Judge. Circuit Douglas appeals Defendant Chav sentence fol- district court’s 151-month to two guilty plea lowing Defendant’s marijuana and cocaine possessing counts distribute, of 21 in violation with intent to 841(a)(1), being and one count firearm, of a in viola- possession felon in 924. 922(g)(1) §§ and tion of 18 U.S.C. below, AF- forth For the reasons set FIRM.
BACKGROUND with the Nashville I. Three Encounters Police Barry Officer November On Metropolitan Demonbreun of the Nashville a home on the Department Police visited a child regarding of Nashville east side belonged investigation. The house abuse it was Defen- girlfriend, the door. Demon- dant who answered mari- strong detect a smell of breun could from the house and asked juana Defendant admitted that he had about it. having any marijuana, smoked but denied premises. on the He then more Demonbreun to search voluntarily allowed telling Demonbreun house—even Despite Defen- to focus his efforts. where Demonbreun representation, dant’s earlier (two finding handguns five up ended stolen); 3.7 reported had been which cocaine; ounce of marijuana; ounces of one $11,000 in cash. Once approximately and search, he completed Demonbreun had Goodwin of the vice called Detective Joel Goodwin, talking After with De- division. volunteered to act as an informant fendant police. for the Nashville informant police Defendant’s career as a wire once in Janu- was brief. He wore a met with someone the ary and MOORE, being drug MERRITT, police suspected Nashville BEFORE: place, and Goodwin CLAY, dealer. No sale took Judges. Circuit that Defendant had not even ar- rested suspected charged by the state authorities ranged meeting. a transaction possession with intent to sell less than later, Goodwin was Several hours contact- pounds ten of marijuana. police
ed another Nashville officer who just spotted suspected had Defendant and Sentencing II. Prosecution *3 in engage drug he was about a transac- While Defendant was in custody, state tion. Goodwin instructed the officer to he was indicted in the U.S. District Court follow Defendant’s car. The officer pulled for the Middle District of Tennessee on Defendant over a short time later after three counts: possession marijuana of observing speeding chang- Defendant and the intent to marijuana, distribute in viola- ing rapidly. initially lanes Defendant 841(a)(1); of 21 § tion U.S.C. possession of officer, complied with the but then at- distribute, cocaine with the intent to also tempted to flee on foot. While Defendant 841(a)(1); in violation of being and a field, ran through nearby a officers saw firearm, felon in possession of a in viola- plastic him take a out of bag his waist- §§ tion of 18 922(g)(1) and 924. away. bag band and throw it That con- pleaded Defendant guilty to all three tained 44.9 grams of cocaine. Officers re- counts. apprehended Defendant and found $1500 in person. cash on his Once Goodwin ar- In completing presentence investiga- scene, rived at told him Defendant, report for probation guns that more and could be found office him designated a career offender nearby at Defendant’s office. Goodwin pursuant to U.S.S.G. 4B1.1. To qualify office, and Defendant drove to the where enhancement, for this a defendant must handguns, Goodwin recovered two a box have been prior convicted of two felonies ammunition, $11,000 cash, in grams B.l that are crimes of violence or controlled cocaine, digital empty and scales and offenses, among substance other things. bags, all covered in white residue. De- Defendant has an extensive criminal histo- contraband, spite finding this Goodwin de- ry, probation specified only office give cided Defendant more time to as- Tennessee convictions as con- police. sist the trolled substance offenses. One of these Goodwin’s ran patience February out on convictions—from October 2001—was de- date, 2010. On that Office Demonbreun scribed in the PSR as “Possession of Less a stopped running stop sign. car for Than 0.5 Grams of Cocaine for Resale.” Defendant was behind the wheel rec- description This does not track to the lan- ognized Demonbreun from the search in guage Tennessee criminal statute November 2009. Also familiar from No- specify and the PSR did not which statute
vember overwhelming- was the smell of Nonetheless, ap- Defendant had violated. marijuana coming from the car. Demon- (and plying the career offender Guideline breun marijuana asked Defendant had adjustments), after other probation of- vehicle, produced and Defendant fice advisory calculated Defendant’s Guide- baggy small from his trousers. Defendant sentencing range lines as 151-188 months. also indicated that there more was mari- juana Defendant asked the district court to hidden the car—almost 2.5 kilo- vary grams. purported Demonbreun downward based on his called Goodwin to Defendant; ask what substantial assistance to the Nashville po- to do with Goodwin longer willing support was no to tolerate Defen- lice. To this argument, Defendant law-breaking. dant’s testify Defendant was ar- called Demonbreun and Goodwin to (3) erred er; court Defendant also hearing. at his from the declining depart a variance on departure requested history did not Guidelines. criminal that his the basis the career offender fall in the heartland court’s sentence review a district We requested Defendant further Guideline. reasonableness and substantive procedural federal make his See Gall United for abuse of discretion. lengthy concurrently to the run sentence already sentence state general This rule L.Ed.2d the search of his arising out of serving modified, however, when 2009. in November girlfriend’s house question. a Bostic See United asks Bostic, Cir. ac- v. district court sentencing, At 2004). counsel “[Rjegardless [] of how argu- various knowledged Defendant’s *4 we review question,” the Bostic ments, that a answers ultimately determined made claims and substantive appropri- procedural sentence within-Guidelines sentencing for reasonableness. to that Defendant’s The court believed ate. Simmons, 587 F.3d made him a true United history extensive criminal (6th Cir.2009). if the district But offender, only. in name just one career not during error procedural commits the crimes of court also found that The court failing to address a defen conviction, sentencing by guns, which involved — if the example for though arguments, dant’s dangerous. Even serious and were —and object following the to does not authority it had the defendant recognized court the error. Guidelines, plain we review for question, the Bostic depart or error standard plain id. under See “Under appropriate think it court did not (1) review, the defendant must show imposed a of The court the facts of this case. (2) error; clear or months, the error was begin which will there is of 151 sentence (when subject than to reasonable obvious rather September on the earlier (3) defendant’s dispute; it affected the in his state eligible parole Defendant ordinary sentence) which in the rights, released from substantial when he is of the affected the outcome court case means it After the district custody. state (4) it seri proceedings; court and Defendant posed question the Bostic fairness, integrity or ously affected the sentencing proceeding object, did not judicial proceedings.” public reputation timely followed. adjourned. appeal This 852, 856 Massey, v. United States DISCUSSION omitted). Cir.2011) (6th (quotation marks standard of re Applying appropriate appeal on raises three issues Defendant view, argu each of Defendant’s we address the district court’s sentence.1 concerning ments in turn. (1) asserts that: Specifically, Defendant procedural the district court committed Request for a Variance I. Defendant’s concerning Defen- and substantive error on Substantial Assistance Based for substan- for a variance request dant’s (2) First, argues assistance; court erred tial error procedural court committed a career offend- district Supreme have been included in the indictment argues 1. Defendant also Alleyne already rejected jury. recent We have Court’s decision submitted to a — -, S.Ct. reading Alleyne. United States v. this See (2013), sup- Cir.2014). that the facts means Cooper, 739 F.3d needed porting the career offender Guideline request to his for a F.3d by failing respond see also Wallace, variance based on substantial assistance. argues (6th Cir.2010).
Defendant also
this failure
constituted substantive error. Defendant
us,
In the case before
issue,
preserved
has
the latter
but since he
explicitly
address Defendant’s sub
object
pur-
failed to
to the district court’s
argument.
stantial assistance
Neverthe
error,
ported procedural
plain error review
less, we hold that the court
did
commit
applies.
expressly
error. The court
noted
procedural argument
rests
argued
that Defendant had
for a variance
purported
on the district court’s
failure to
based on substantial assistance. Contra
adequately address Defendant’s variance
Wallace,
806; Gapinski,
peal, argument support- a defendant’s further hold that the district
ing
presents
arguably
evidence
We
an
merito-
sentence,
court’s refusal to
downward was sub
rious claim for a lesser
but there
“Review for
stantively
is little to
that the
reasonable.
sub
suggest
district
it,
stantive reasonableness focuses on wheth
actually
may
considered
then remand
be
Gale,
adequate,
greater
v.
appropriate.” United States
468 er
sentence is
Defendant,
his Oc-
According
offenses.
the sentenc
necessary
accomplish
than
in 18
for “Possession
by Congress
tober 2001 conviction
identified
ing goals
3553(a).
may be con
Re-
A sentence
Than 0.5 Grams of Cocaine for
Less
substantively unreasonable when
a controlled substance of-
sidered
sale” was not
a sentence arbi
ruling
court selects
the district
and the district court erred
fense
impermissi
sentence on
trarily,
this,
bases the
argues,
much. All of
as
factors,
an unreasonable
gives
However,
ble
de novo.
we
should be reviewed
any pertinent factor.”
weight to
amount of
applies,
error review
hold that
Cochrane,
v.
702 F.3d
States
United
err in
plainly
court did not
Cir.2012)
(6th
marks and
(quotation
Defendant a career offender.
omitted).
that falls
A sentence
citation
proper
parties hotly
The
contest
range is
Guidelines
within a defendant’s
normal cir
of review. Under
standard
of reasonableness.
presumption
accorded
cumstances,
court’s
we review
Herrera-Zuniga,
See
States
United
convic
conclusion that a defendant’s
legal
Cir.2009).
(6th
status de
qualifies
for career-offender
government
consisted
assistance
novo,
posed
even if the defendant
no ob
single
occasion
wearing a wire on
States v.
jection below. See United
placed
if Defendant
ended
failure —even
Cir.2009).
Wynn,
attempt.
in the
Defen
danger
himself in
However,
error review if
apply plain
to his own
law enforcement
dant did direct
object below and
the defendant failed to
for his
got
but he
credit
guns,
requests the more strin
government
acceptanee-of-
in the form of an
contrition
gent
appeal.
standard of review on
See
The court did
reduction.
responsibility
Rodriguez,
United
arbitrarily and dis
its sentence
not select
(6th Cir.2011);
also
see
3553(a)
the relevant
factors.
cussed all
Woodruff,
Cir.
sum,
overcome the
In
Defendant has not
2013).
contends that he did
*6
at
of reasonableness
that
presumption
object
application
to the
of the ca
below
sentence.
taches to his within-Guidelines
Guideline,
points
offender
to this
reer
Madden,
at 613.
See
sentencing
from his
memoran
passage
dum:
Designation
II.
Offender
Career
designation
the
objects
that
the
Defendant next asserts
drug offense as a
[October]
him a
court erred
for career offender
predicate offense
§ 4B1.1.
offender under U.S.S.G.
career
however, that
acknowledges
status. He
applies
Guideline
if
The career offender
“categorical ap-
current
under
the
“(1)
eighteen
was at least
the defendant
proach” the
will treat the offense
Court
time the defendant com
years old at the
pur-
as a “controlled substance offense”
conviction;
mitted the instant offense
of the
purposes
to 4B1.1. For the
suant
(2)
a
offense of conviction is
the instant
arguments
variance
made
departure and
...
controlled substance
felony that is
below,
that,
emphasis
it bears
had
(3)
offense;
the defendant has at least
simple posses-
as
offense been treated
...
felony convictions of
a con
prior
sion,
Defendant’s total offense level
offense.”
trolled
substance
U.S.S.G.
21, making his sen-
would be reduced to
4Bl.l(a).
§
have
The first two elements
range 77-96 months.
tencing
only ques
been
in this case—the
satisfied
(ci-
(R. 76,
Mem. at 136
Sentencing
Def.’s
Defendant has been con
is whether
omitted).)
does not
quotation
tation
This
controlled substance
victed of two
judicial
what Defendant claims. Defendant
contained in
mean
certain
records con
requesting
placing
is either
a variance or
cerning the earlier prosecution to deter
should the law
objection
§
an
on
record
mine if
4B1.1 applies.
Shepard
See
v.
surrounding the career offender Guideline
States,
United
change.
passage
Even if this
could be
objection
construed as an
to the calculation
The issue before us is whether Defen
Guidelines,
Defendant removed all
dant’s October 2001 conviction constitutes
hearing.
during
doubt
PSR,
a controlled substance offence. The
Again
again,
professed
however,
identify
the Tennessee
challenging
he was not
the Guidelines cal-
violated,
statute that Defendant
either by
culation, which included the career offend-
description or citation. Defendant con
(R. 92,
Tr.,
designation.
Sentencing
er
at
cedes
the offense must have been one
349.)
276, 280, 820,
Because Defendant did
of two
simple posses
Tennessee crimes:
object
application
of the career
sion,
§
in violation of Tenn.Code
39-17-
gov-
offender Guideline and because the
possession
with intent to “manufac
review,
requested plain
ernment has
error
ture,
sell,”
deliver or
in violation of Tenn.
review
this issue under that standard.
§
Simple possession
Code
39-17-417.
The Guidelines define a controlled sub-
not a controlled substance offense under
stance offense as “an offense under federal
categorical approach.
See United
law, punishable by imprisonment
or state
Montanez,
v.
exceeding
year,
prohib-
term
one
Cir.2006);
Ryan,
see also United States v.
manufacture,
import, export,
its
distri-
(6th Cir.2011)
App’x
(per
407 F.
31-32
bution,
dispensing
of a controlled sub-
curiam).
hand,
On the other
we have al
(or
substance)
stance
a counterfeit
or the
ways
treated a violation of 39-17-417 as
(or
possession of a controlled substance
a categorical controlled substance offense.
substance)
counterfeit
with intent to manu-
31-32;
Ryan,
Fed.Appx.
See
James
facture,
distribute,
import, export,
or dis-
Fed.Appx.
v.
4B1.2(b).
pense.”
employ
U.S. S.G.
We
(6th Cir.2007);
Hughley,
“categorical approach”
determine
Fed.Appx.
a conviction constitutes a controlled sub-
Holloway,
stance
offense. See United States
Ev-
*
(6th Cir.1998)
ans,
curiam)
(per
(unpublished). Defendant ar
categorical approach,
this
“Under
*7
gues that we
it wrong, pointing
have
out
only
court must look
to the fact of convic-
§
proscribes possession
that
39-17-417
and the statutory
definition —not the
“manufacture,
with intent
deliver or
underlying
facts
the offense—to determine
appear
sell”—terms that do not
in the
supports
whether that definition
a conclu-
Guidelines’ definition of “controlled sub
sion that
the conviction was for a” con-
stance offense.” Defendant
reads
too
Wynn,
trolled substance offense.
much into these lexical differences. Our
(quotation
emphasis
marks and
omitted).
inquiry is not whether the
of the
However,
elements
if the
of con-
statute
crime contain the same words as the
viction encompasses conduct that would
offense, Guidelines’ definition—it is “whether the
constitute a controlled substance
not,
elements of the offense are of the
that
plus
type
employ
conduct
would
we
justify
would
its inclusion within the
categorical approach.”
“modified
See id.
defini
categorical approach,
the modified
tion of a
Under
controlled-substance offense.”
may
Woodruff,
(emphasis
look to the facts
generally synonymous ‘prejudicial,’ CONCLUSION ‘usually which means that the error must have affected the outcome of the district above, For the reasons set forth ” court proceedings.’ United States v. Bar sentence of the district court is AF- nett, (6th Cir.2005) FIRMED in full. Cotton,
(quoting United States v. 535 U.S. 625, 632, MOORE, KAREN S.Ct. concurring NELSON L.Ed.2d 860 “ (2002)). However, there are part concurring judgment. ‘errors that presumed should be prejudicial the de I write separately Doug on the issue of specific fendant cannot make a showing of designation las’s I as a career offender. prejudice.’” Segines, agree majority with the that Douglas (6th Cir.1994) (quoting Unit object failed to to the application of the Olano, ed States v. guideline. career-offender a defen When (1993)). 1770, 123 S.Ct. object dant does not to the determination prior that a qualifies predi conviction as a Here, Douglas capable “mak[ing] cate offense under the career-offender id., specific showing prejudice,” and so guideline, government and the does not prejudice presumed. Douglas is not could review, urge plain-error we review the is prejudiced by applica- show that he was sue de novo. States v. Rodriguez, United career-offender enhancement United by stating the Tennessee statute under v. Wynn, which he was convicted. If a conviction Cir.2009). Here, however, government qualify under that statute does not as a argued that Douglas object offense, controlled-substanee then he guidelines urged calculation and the court prejudice would have demonstrated apply plain-error Appellee review. Br. improper application the career- Accordingly, plain-error 26-28. review offender enhancement. But Douglas does applies. this, other, any argument not make court,
In government has he prong plain-error satisfies third the burden to prove that a conviction review. Nor he present argu- does predicate application is a offense for the career-of- ment that of the career-offend- guideline. Anglin, “seriously fender er enhancement affected the *9 fairness, reputation of integrity public Massey, 663 F.3d
judicial proceedings.” not met his Douglas has Because
at 856. he is entitled to showing that
burden
relief, the sentence of I would affirm
district court. CO., dba Carmeuse
O-N MINERALS Stone, Plant,
Lime & Calcite
Plaintiff-Appellee, BROTHERHOOD
INTERNATIONAL BOILERMAKERS, IRON SHIP
OF
BUILDERS, BLACKSMITHS, FORG- LIME, HELPERS, CEMENT,
ERS &
GYPSUM, AND ALLIED WORKERS AFL-CIO;
Division, Lodge Local NO.
D500, Defendants-Appellants.
No. 12-1633. Appeals, Court
Sixth Circuit. 18, 2014.
April GRIFFIN,
BEFORE: MOORE and KORMAN, Judges; and District Circuit Judge.*
KORMAN, Judge. District (the Company O-N Minerals Appellee appel- “Company”) or the “appellee” Cement, Lime, and Al- Gypsum lants the of the International lied Workers Division * York, Korman, sitting by designation. New Senior District of The Honorable Edward R. Judge for the Eastern United States District