United States v. Winton ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0429p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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Nos. 06-5136/5410/5680
v.
,
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CALVIN JUNIOR WARD (06-5136), BERREESE -
LATRELL WINTON (06-5410), and STEPHEN C. COOK -
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Defendants-Appellants. -
(06-5680),
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Appeal from the United States District Court
for the Eastern District of Tennessee at Winchester.
No. 05-00026—Curtis Lynn Collier, Chief District Judge.
Argued and Submitted: September 11, 2007
Decided and Filed: October 23, 2007
Before: GUY, ROGERS, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Clayton M. Whittaker, MACK & WHITTAKER, Chattanooga, Tennessee, for
Appellant. Robert C. Anderson, ASSISTANT UNITED STATES ATTORNEY, Chattanooga,
Tennessee, for Appellee. ON BRIEF: Clayton M. Whittaker, MACK & WHITTAKER,
Chattanooga, Tennessee, John C. Cavett, Jr., CAVETT & ABBOTT, Chattanooga, Tennessee, Bryan
H. Hoss, DAVIS & HOSS, Chattanooga, Tennessee, for Appellants. Robert C. Anderson,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
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OPINION
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McKEAGUE, Circuit Judge. Defendants Calvin Ward, Berreese Winton, and Stephen Cook
pled guilty to various drug trafficking crimes. In a joint sentencing hearing, the district court
sentenced Ward to 210 months’ imprisonment and Winton to 292 months’ imprisonment. Shortly
thereafter, the district court sentenced Cook to 294 months’ imprisonment.
All three defendants now appeal their respective sentences. Ward objects to the use of a
prior felony drug conviction as a predicate offense for purposes of career offender status. Winton
argues that the district court erred when it applied a two-level firearm enhancement. Cook raises
three objections, contending that the two-level enhancement for his leadership role was improper,
1
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the enhancement provision is unconstitutionally vague, and his sentence was unreasonable.
Contrary to defendants’ arguments, the district court did not commit error when it sentenced each
defendant, and so we affirm all three judgments.
I. BACKGROUND
Law enforcement authorities commenced the investigation that led to co-defendants Ward’s,
Winton’s and Cook’s arrests and convictions when they received information that Cook was selling
a large volume of crack cocaine in the Tullahoma, Tennessee area. As part of that investigation, a
confidential informant (“CI”) purchased crack cocaine from Ward beginning in June 2004 and
ending in February 2005.
On February 10, 2005, Ward was advised that a warrant had been issued for his arrest for
selling crack cocaine. Ward waived his rights and explained to investigating officers that since
March 2002, Cook was Ward’s primary source of crack cocaine. Ward advised that from March
2002 through February 10, 2005, he purchased a total of 2 to 3 kilograms of crack cocaine from
Cook.
On August 3, 2005, a CI arranged for a controlled purchase of crack cocaine from Cook.
After Cook fronted crack cocaine to the CI, a search warrant was obtained to search Cook’s
residence. When officers arrived to execute the search warrant, Cook and Winton were in the front
yard. Both Cook and Winton were searched. The search revealed that Winton had a plastic bag
containing crack cocaine and cash. Among the items seized from Cook’s residence was a Smith and
Wesson 9-millimeter handgun with a loaded magazine.
On August 10, 2005, Winton waived his rights and explained that he began purchasing crack
cocaine from Cook in mid-March 2003. From that time until his arrest, Winton purchased an
average of 4 ½ to 5 ounces of crack cocaine per week from Cook. Winton also stated that Cook
always carried a gun during their drug transactions, either a 9-millimeter pistol, a .25 automatic
pistol, a .380 pistol, or a Glock .40 pistol.
Winton explained that Ward made crack cocaine deliveries on behalf of Cook. Winton
estimated that on 20 separate occasions, Ward delivered crack to him after Winton had ordered the
crack cocaine from Cook. Winton said that when Cook was unavailable, Winton would order crack
cocaine from Ward.
On June 30, 2005, a federal grand jury charged defendants Cook and Ward in a ten-count
indictment with conspiracy to distribute fifty grams or more of crack cocaine and related substantive
drug distribution counts. On August 23, 2005, the grand jury returned a fourteen-count superseding
indictment charging three additional counts against Cook and adding co-defendant Winton, who was
charged with a substantive drug offense in count twelve.
On October 6, 2005, Ward pled guilty to conspiracy to distribute five or more grams of crack
cocaine, a lesser included offense in count one, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
841(b)(1)(B). That same day, Winton pled guilty to count twelve, which charged possession with
intent to distribute five or more grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B). On November 3, 2005, Cook pled guilty to count one, which charged conspiracy to
distribute fifty or more grams of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
841(b)(1)(A); and to count fourteen, which charged possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c).
On January 6, 2006, the district court sentenced Winton to 292 months’ imprisonment and
Ward to 210 months’ imprisonment. On April 7, 2006, Cook was sentenced to 234 months’
imprisonment on count one and to a statutorily mandated consecutive term of 60 months’
Nos. 06-5136/5410/5680 United States v. Ward, et al. Page 3
imprisonment on count fourteen, for a total of 294 months’ imprisonment. All three defendants filed
timely notices of appeal.
II. ANALYSIS
A. Ward’s objection to use of prior felony drug conviction.
Ward asserts one objection to the sentence imposed by the district court.1 He challenges the
district court’s use of his prior conviction for selling 2crack cocaine on January 31, 2002 as a
predicate offense for purposes of career offender status.
This Court reviews for clear error a district court’s findings of fact with respect to its
application of the Sentencing Guidelines; conclusions of law, however, are reviewed de novo.
United States v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006). A factual finding is clearly erroneous
“when the reviewing court on the entire evidence is left with the definite and firm conviction that
a mistake has been committed.” Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006) (citation
omitted). Whether conduct is “related” for purposes of calculating a defendant’s career offender
status is a fact-specific determination that this Court reviews for clear error. United States v. Horn,
355 F.3d 610, 612-13 (6th Cir. 2004).
To qualify as a career offender under U.S.S.G. § 4B1.1, a defendant who was over the age
of eighteen at the time he committed the instant offense must have “at least two prior felony
convictions of . . . a controlled substance offense.” U.S.S.G. § 4B1.1(a)(1),(3). The term “two prior
felony convictions” means defendant (1) “committed the instant offense of conviction subsequent
to sustaining at least two felony convictions” and (2) “the sentences for at least two of the
aforementioned felony convictions are counted separately under the provisions of § 4A1.1(a), (b),
or (c).” U.S.S.G. § 4B1.2(c). “The term ‘prior sentence’ means any sentence previously imposed
upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not
part of the instant offense.” U.S.S.G. § 4A1.2(a)(1).
Ward argues that his January 2002 offense is “related” to the present offense because it was
part of a single common scheme or plan inasmuch as he purchased the crack cocaine at co-
conspirator Cook’s residence, albeit through another person.3 Because the prior offense and the
present offense are “related,” Ward argues the prior conviction should not have been used to
adjudicate him a career offender.
1
The presentence report (“PSR”) had Ward’s base offense level at 38. After a three-level reduction for
acceptance of responsibility, his base offense level was 35. Based on two predicate offenses for purposes of career
offender status, Ward’s criminal history category was elevated from IV to VI. The Court granted the government’s
motion for a downward departure for substantial assistance, granting a further three-level reduction in his offense level.
After the downward departure, Ward had a total offense level of 32 and a criminal history category of VI that resulted
in a Sentencing Guidelines range of 210 to 262 months. Ward was sentenced to 210 months.
2
Ward was arrested for that offense on March 21, 2002 and subsequently sentenced on May 13, 2003.
3
Ward cites Application Note 3 to U.S.S.G. § 4A1.2, which provides:
3. Related Cases. Prior sentences are not considered related if they were 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). Otherwise, prior
sentences are considered related if they resulted from offenses that (1) occurred on
the same occasion, (2) were part of a single common scheme or plan, or (3) were
consolidated for trial or sentencing.
Nos. 06-5136/5410/5680 United States v. Ward, et al. Page 4
Ward’s argument “illustrates a common misconception about the term ‘related cases” in
§ 4A1.2(a)(2).” United States v. Beddow, 957 F.2d 1330, 1337 (6th Cir. 1992). In Beddow, the
defendant argued that his possession of a concealed weapon (i.e., the alleged prior state offense and
conviction) and the money laundering offenses (i.e., the present offenses) “occurred on a single
occasion” because he was arrested for both crimes at the same time and both offenses were part of
“a single common scheme or plan.” Id. The Court rejected the defendant’s argument and explained
that the question of “related cases” referred to in § 4A1.2(a)(2) applies to the relationship between
prior sentences, not to the relationship between prior sentences and the present offense. Id. (citing
United States v. Walling, 936 F.2d 469, 471 (10th Cir. 1991) (emphasis added)). Here, Ward’s
“related” argument fails for the same reason. See also United Sates v. Evans, 187 F.3d 638 (6th Cir.
1999) (unpublished) (applying the Beddow analysis to reject the defendant’s argument that his prior
drug sentence was “related” to his present offense because he obtained the cocaine that led to his
prior sentence from his alleged co-conspirators in the present offense).
To the extent Ward’s argument is that his prior conviction is part of the present offense, his
argument similarly fails.4 See U.S.S.G. § 4A1.2(a)(1) (providing that a “prior sentence” is any
sentence previously imposed for “conduct not part of the instant offense”); Evans, 187 F.3d at **2
(Cole, J., concurring).
Indeed, it is undisputed that at the time of the January 2002 offense, Ward had multiple
suppliers of crack cocaine other than Cook. It is undisputed that Ward did not buy the crack cocaine
that was the subject of the January 2002 offense directly from Cook. It is undisputed that Cook did
not trust Ward enough to sell him crack cocaine directly until March 2002. Moreover, the instant
superseding indictment involves conspiracy conduct that started in March 2002, a start date provided
by Ward himself. The superseding indictment not only did not charge any specific violations or
overt acts in January 2002, but did not charge any specific violations or overt acts until 2004, well
after the January 2002 offense.
In sum, Ward’s offenses occurred months apart from each other and years before any overt
acts charged in the superseding indictment; were accomplished in concert with an individual not
charged as a co-conspirator; and occurred prior to the charged conspiracy; therefore, the offenses
were severable instances of unlawful conduct. See United States v. Escobar, 992 F.2d 87, 90 (6th
Cir. 1993) (finding that there is “no justification for concluding that any cocaine possession by
[defendant] during the three-year time span of the criminal enterprise must automatically be
considered as having been committed by him as part of or in furtherance of his criminal enterprise”).
Accordingly, we find no error in the district court’s findings that Ward’s prior conviction for cocaine
trafficking is not part of the instant offense and therefore is a valid predicate offense in determining
career offender status.
4
The district court construed Ward’s challenge as an objection that his prior conviction should not be included
as a predicate offense for career offender purposes because that prior conviction was part of the instant offense. J.A.
157 (finding that the “conviction that is being challenged is not part of the conduct of the instant offense”).
Nos. 06-5136/5410/5680 United States v. Ward, et al. Page 5
B. Winton’s objection to firearm enhancement.
Winton asserts on appeal that the district court erred by enhancing his offense level based
on co-defendant Cook’s possession of a firearm during their drug transactions.5 This Court reviews
the district court’s factual findings regarding the application of the firearms enhancement for clear
error. United States v. Johnson, 344 F.3d 562, 565 (6th Cir. 2003). Conclusions of law, however,
are reviewed de novo. Galloway, 439 F.3d at 322.
Winton argues that without a conspiracy charge, the district court could not properly find
he was in constructive possession of Cook’s firearm or otherwise apply the enhancement. Whether
a defendant, not charged with conspiracy, may receive a § 2D1.1(b) enhancement for a co-
defendant’s possession of a firearm during their drug transactions is a question of first impression
in this circuit.
Section 2D1.1(b) states that a defendant’s base offense level for a drug trafficking offense
must be increased by two levels “[i]f a dangerous weapon (including a firearm) was possessed.”
U.S.S.G. § 2D1.1(b)(1). This particular enhancement “reflects the increased danger of violence
when drug traffickers possess weapons.” U.S.S.G. § 2D1.1, cmt. n.3. The enhancement applies
regardless of whether a defendant actually or constructively possessed the weapon. United States
v. Galvan, 453 F.3d 738, 742-43 (6th Cir. 2006). Possession of a firearm by a co-conspirator is
attributable to any other conspirator if the co-conspirator’s possession was reasonably foreseeable.
Id. at 742 (citation omitted). Further, this enhancement “should be applied if the weapon was
present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G.
§ 2D1.1, cmt. n.3 (emphasis added).
Here, both parties agree that possession of a firearm by a co-conspirator is attributable to any
other conspirator if the co-conspirator’s possession is reasonably foreseeable. Both parties also
agree that Cook possessed firearms, Cook used those firearms to protect his drug business, and
Winton had actual knowledge that firearms were present during his drug transactions with Cook.
The parties disagree as to whether a conspiracy charge is required to impute one defendant’s
possession of a firearm to a co-defendant. For the reasons that follow, we answer in the negative.
Winton’s enhancement was proper here 6because, although a finding of jointly undertaken activity
is necessary, a conspiracy charge is not.
5
The PSR had Winton’s base offense level at 38. A two-level enhancement was applied for Winton’s
knowledge that Cook carried a firearm during their drug transactions. After a three-level reduction for acceptance of
responsibility, his base offense level was 37. His criminal history placed him in category VI. Based on a total offense
level of 37 and a criminal history category of VI, his Sentencing Guidelines range was 360 months to life. The Court
granted the government’s motion for a downward departure for substantial assistance pursuant to U.S.S.G. § 5K1.1.
After the downward departure, the offense level was 35 and his criminal history category was VI. That resulted in a
Sentencing Guidelines range of 292 to 365 months. Winton was sentenced to 292 months.
6
Other circuits have similarly interpreted the reach of the enhancement. See United States v. Mumford, 25 F.3d
461, 469 (7th Cir. 1994) (stating that “the criminal defendant who pleads guilty to a single-offense narcotics transaction
is now fair game for the application of the rules of relevant conduct to the weapons enhancement, even if the conspiracy
count is dismissed”); United States v. Aguilera-Zapata, 901 F.2d 1209, 1216 (5th Cir. 1990) (explaining that
“[n]otwithstanding the court’s dismissal of the conspiracy count in accord with [defendant’s] plea agreement, the facts
also clearly indicate that [defendant] acted in concert with [the co-defendants]); United States v. White, 875 F.2d 427,
433 (4th Cir. 1989) (finding that “although [defendant’s] guilty plea was based on an aiding and abetting charge and not
on a conspiracy charge, the district court did not err in considering the [co-defendant’s] possession of the weapon for
sentencing purposes”).
Nos. 06-5136/5410/5680 United States v. Ward, et al. Page 6
Application of this enhancement is no longer limited to occasions when a firearm is present
during the defendant’s offense of conviction; it applies, more broadly, during “relevant conduct.”
United States v. Faison, 339 F.3d 518, 520 (6th Cir. 2003). Relevant conduct under the Sentencing
Guidelines includes: “in the case of jointly undertaken criminal activity . . . all reasonably
foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity
(a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others,
whether or not charged as a conspiracy).” U.S.S.G. § 1B1.3(1)(B) (emphasis added).
The Sentencing Guidelines thus make it clear that whether the co-defendants are charged
as conspirators is of no consequence. Defendant Winton cites no authority to suggest that the
Sentencing Guidelines mean other than what they say.
The district court here appropriately found that defendants Winton and Cook engaged in a
jointly undertaken criminal activity during their weekly drug transactions from March 2003 to
August 2005. See United States v. Brown, 332 F.3d 363, 373 (6th Cir. 2003) (stating that evidence
of repeated drug purchases suggests more than a “mere buyer-seller relationship” and evidence of
transactions involving a large volume of narcotics creates an inference of conspiracy). The district
court also correctly concluded that, in light of Winton’s admission that he had actual knowledge that
Cook was always armed during their drug transactions, the presence of a firearm was reasonably
foreseeable to Winton. And, under these circumstances, it was not clearly improbable that the
firearm was connected to the offense. Inasmuch as Winton and Cook were engaged in a jointly
undertaken criminal activity and Cook’s possession of the weapon was not only reasonably
foreseeable, but was actually known to Winton, we find no error in the district court’s finding that
Cook’s possession of the firearm is attributable to Winton as part of the “relevant conduct.”7
C. Cook’s objection to leadership enhancement.
Cook asserts three challenges to the sentence imposed by the district court.8 Cook first
argues that the two-level enhancement for being an organizer, leader, manager or supervisor was not
warranted. See U.S.S.G. § 3B1.1(c). This Court reviews a district court’s decision concerning an
enhancement for defendant’s role in an offense for clear error. Gates, 461 F.3d at 709.
To enhance a sentence under § 3B1.1, the district court should make a factual finding that
defendant had supervised at least one person. U.S.S.G. § 3B1.1 n. 2; United States v. Caseslorente,
220 F.3d 727, 736 (6th Cir. 2000). Here, the district court found that where Winton ordered crack
cocaine from Cook on 20 separate occasions over the course of many years, and where crack cocaine
was delivered by Ward, “it is implausible that Mr. Cook was not exercising some degree of control
over Mr. Ward, or the relationship would not have continued as long as it did and on the number
of occasions it did.” J.A. 213 (emphasis added); J.A. 211 (noting the existence of “substantial
7
To the extent Winton alleges a violation of his Fifth or Sixth Amendment rights because the district court
engaged in fact-finding, Winton’s arguments fail. See United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006) (holding
that “judicial fact-finding in sentencing proceedings using a preponderance of the evidence standard post- Booker does
not violate either Fifth Amendment due process rights, or the Sixth Amendment right to trial by jury”); see also United
States v. Coffee, 434 F.3d 887, 898 (stating Booker did not eliminate judicial fact-finding).
8
The PSR had Cook’s base offense level at 38. A two-level enhancement was applied for Cook’s role in the
offense as an organizer or leader. After a three-level reduction for acceptance of responsibility, Cook’s total offense
level was 37. Cook was subject to a mandatory five-year sentence on his possession of a firearm conviction. Based on
a total offense level of 37 and a criminal history category of I, Cook’s Sentencing Guidelines range was 210 to 262
months on count one (conspiracy) with a 60-month mandatory minimum for count fourteen (possession of a firearm),
for a total Sentencing Guidelines range of 270 to 322 months. Cook was sentenced to 234 months for one count and a
mandatory 60 months for the other count, for a total of 294 months.
Nos. 06-5136/5410/5680 United States v. Ward, et al. Page 7
numbers of transactions where the same pattern recurs” gives rise to an inference that Ward was
acting on behalf of Cook). Under these circumstances, the district court did not commit clear error.
Further, even if the district court erred by applying the two-level enhancement, Cook’s
objection still fails. Sentencing Guidelines range errors that do not affect a defendant’s sentence are
harmless and do not require a remand for re-sentencing. United States v. Hazelwood, 398 F.3d 792,
801 (6th Cir. 2005). An error is harmless if the error “did not affect the district court’s selection of
the sentence imposed.” United States v. Williams, 503 U.S. 193, 203 (1992).
Here, just before the court determined Cook’s sentence, the prosecutor stated:
[I]n imposing the sentence, whatever [the court] chooses to impose – If there is an
appeal from this, I imagine that it would likely be on the role in the offense. And I
understand the Court’s decision, and I concur with it. I would also point out that
given the amount of drugs that he was held responsible for, this Court could easily
find that the guidelines were insufficient in terms of the period of incarceration. So
I would ask the Court to make clear on the record, if the Court feels this way, that
regardless of the role in the offense, given the overall nature and extent of Mr.
Cook’s drug trafficking, whatever sentence the Court imposes it believes is a
reasonable one.
J.A. 222. In response to the prosecutor’s request, the district court subsequently explained:
[T]he Court has determined that the appropriate sentence for Mr. Cook would be a
period of incarceration of 294 months. And the Court would have imposed this
sentence regardless of what the Court had determined regarding sentencing
guidelines in this case. Had the Court decided that the guidelines were higher than
what the Court did, or had the Court determined that the guidelines were lower than
what the Court did, based on the factors in Section 3553(a), the Court would have
arrived at this same sentence.
J.A. 225-26. The district court emphasized that Cook “made a significant contribution to that drug
problem that we’re having, over a number of years.” J.A. 223-24. And while the district court
agreed it was a “tough sentence,” it “[did] not believe it [was] inappropriate, given the nature of the
offense here and also the purposes set out in Section 3553.” J.A. 225. Accordingly, any error in
applying said enhancement would be a harmless error that does not require a remand because the
district court would have sentenced Cook to 294 months regardless of the enhancement at issue. See
United States v. Holland, 209 F. App’x 477, 480-82 (6th Cir. 2006) (unpublished) (finding harmless
error where the same judge that sentenced Cook included substantially the same colloquy regarding
defendant’s imposed sentence); United States v. Cook, No. 05-2731, 2007 WL 930212, at *3-4 (6th
Cir. 2007) (unpublished) (finding harmless error where district court stated it would have imposed
the same sentence whether or not it applied a two-level firearm enhancement).
D. Cook’s argument that U.S.S.G. § 3B.1.1 is unconstitutionally vague.
Cook also asserts that U.S.S.G. § 3B.1.1 is unconstitutionally vague. “Constitutional
challenges to sentences are questions of law, subject to de novo review on appeal.” United States
v. Rodgers, 278 F.3d 599, 602 (6th Cir. 2002). A defendant challenging the application of the
Sentencing Guidelines must first present the claim in the district court before it can be entertained
on appeal. United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002) (citations
omitted). Waiver is the “intentional relinquishment or abandonment of a known right.” Id. Waived
or abandoned claims of error are not reviewable. Id. “Although we do not foreclose appellate
review for plain error when the interests of justice demand otherwise, an attorney cannot agree in
Nos. 06-5136/5410/5680 United States v. Ward, et al. Page 8
open court with a judge's proposed course of conduct and then charge the court with error in
following that course.” Id. (citations omitted).
Here, Cook asserted his vagueness argument in his objections to the PSR, but at the
sentencing hearing and in a subsequent motion, Cook expressly represented that all objections had
been resolved except the three enumerated challenges to U.S.S.G. § 3B1.1(c). J.A. 228, 316.
Accordingly, Cook did not argue before the district court that9 U.S.S.G. § 3B1.1(c) was
unconstitutionally vague and he has therefore waived the argument.
E. Cook’s argument that his sentence is unreasonable.
On appeal, this Court examines a sentence to determine “‘whether [the] sentence is
unreasonable.’” United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005) (quoting United States
v. Booker, 543 U.S. 220, 262-63 (2005)). We review sentences for both procedural reasonableness
and substantive reasonableness. United States v. Caver, 470 F.3d 220, 248 (6th Cir. 2006).
A sentence may be substantively unreasonable “when the district court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent section 3553(a)
factors or gives an unreasonable amount of weight to any pertinent factor.” United States v. Borho,
485 F.3d 904, 908 (6th Cir. 2007). “The district court’s overall task remains that of imposing ‘a
sentence sufficient, but not greater than necessary, to comply with the purposes’ of section
3553(a)(2).” United States v. Ferguson, 456 F.3d 660 (6th Cir. 2006) (quoting 18 U.S.C. § 3553(a)).
A presumption of reasonableness applies to a sentence within the advisory Sentencing Guidelines
range. Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
Cook argues that the district court’s sentence was substantively unreasonable because
“[g]iven the Defendant’s complete lack of any criminal history, category I, how could any court state
that a sentence of twenty-four and one-half [] years for someone who has never spent one day in jail
is not unreasonable?” Appellant Cook’s Brief at 30. Cook does not contend that the district court
selected his sentence arbitrarily, based its decision on impermissible factors, or failed to consider
pertinent § 3553(a) factors. Rather he asserts that the district court improperly weighed the relevant
sentencing factors.
To the contrary, the district court here properly considered and weighed all of the section
3553(a) factors in light of Cook’s particular circumstances. It is clear from the record that the
district court undertook extensive consideration of the relevant circumstances surrounding this case,
including reviewing many aspects of the PSR on the record, hearing live witness testimony, allowing
the entry of letters addressed to the court, and considering the statements of Cook, his counsel and
the prosecutor.
The district court appears to have carefully considered and prudently balanced the various
factors in arriving at the sentence. In particular, as observed by the government, the district court
considered Cook’s mitigating factors (e.g., lack of criminal history and potential for rehabilitation),
and found that those factors were offset by Cook’s significant contribution to the drug problem over
a number of years. And, while Cook may have had more potential for rehabilitation than many
defendants because of his family and educational background, the district court suggested that those
9
Even if he had not waived this argument, Cook’s vagueness argument fails. First, the enhancement applied
to Cook does not render criminal, conduct that would otherwise be legal. United States v. Levy, 904 F.2d 1026, 1033 (6th
Cir. 1990) (stating “[s]tatutes are not defective merely because they expose defendants to the risk that legally significant
factors within their criminal conduct may trigger enhanced statutes”). Second, Cook has neither argued nor shown that
U.S.S.G. § 3B.1.1 is impermissibly vague with respect to himself and its enforcement in his case. Id. at 1032 (stating
that when the First Amendment is not implicated, a void for vagueness challenge must be unconstitutional as to the
defendant in the case at hand).
Nos. 06-5136/5410/5680 United States v. Ward, et al. Page 9
factors also weighed at least partially against Cook because he had more opportunities than many
offenders to pursue lawful sources of income.
While defendant Cook’s sentence was lengthy, he has not established that the sentence was
unreasonable. See United States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006) (stating “[t]he fact that
the district court did not give the defendant the exact sentence he sought is not a cognizable basis
to appeal”) (quoting United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006)).
III. CONCLUSION
For these reasons, we AFFIRM defendants’ respective sentences.