United States v. Kenneth Phillips , 515 F. App'x 381 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0168n.06
No. 11-6229
UNITED STATES COURT OF APPEALS FEB 1 3 2013
Defendant-Appellant.
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
KENNETH DALE PHILLIPS, ) DISTRICT OF KENTUCKY
)
)
)
BEFORE: MARTIN and GILMAN, Circuit Judges; FOWLKES, District Judge.'
PER CURIAM. Kenneth Dale Phillips appeals from the sentence imposed against him in
this criminal case.
Phillips pleaded guilty to possessing with the intent to distribute cocaine base, in violation
of 21 U.S.C. § 841(a)(1). The district court determined that, because Phillips was a career offender,
his base offense level was thirty-seven. The court subtracted three levels for acceptance of
responsibility, resulting in a total offense level of thirty-four. Based on the total offense level of
thirty—four and a criminal history category of VI, Phillips’s advisory sentencing guidelines range was
262 to 327 months of imprisonment. Other adjustments resulted in an advisory sentencing
guidelines range of 168 to 210 months of imprisonment. The district court sentenced Phillips to 180
*The Honorable John T. Fowlkes, J L, United States District Judge for the Western District
of Tennessee, sitting by designation.
No. l 1-6229
United States v. Phillips
months of imprisonment, to be served consecutively to a previously imposed fourteen-year state
sentence for cocaine distribution.
On appeal, Phillips argues that his sentence is both procedurally and substantively
unreasonable. He first argues that the district court gave undue weight to the need to avoid
unnecessary sentencing disparities, thereby effectively treating the guidelines as mandatory. Phillips
further argues that the district court erred in several ways when deciding that his federal sentence
would run consecutively to his state sentence. Specifically, he asserts that the court failed to properly
consider the factors set forth in USSG § 5G1 .3(c) cmt. n.3(A); that the court improperly employed
a presumption that favored consecutive sentences; and that the court relied on speculative facts
concerning when he would be paroled from his state sentence.
We generally review a sentence “under a deferential abuse—of-discretion standard for
reasonableness, which has both a procedural and a substantive component.” United States v.
O’Georgz'a, 569 F.3d 281, 287 (6th Cir. 2009) (internal quotation marks and citation omitted). A
sentence may be procedurally unreasonable if the district court treated the guidelines as mandatory,
failed to consider the statutory sentencing factors, or selected a sentence based on clearly erroneous
facts. United States v. Warman, 578 F.3d 320, 350 (6th Cir. 2009). Because Phillips failed to raise
his procedural objections when given the opportunity to do so by the district court at the conclusion
of the sentencing hearing, we review those claims for only plain error. See United States v. Morgan,
687 F.3d 688, 694 (6th Cir. 2012). A sentence may be substantively unreasonable if the district court
failed to consider pertinent sentencing factors or gave an unreasonable amount of weight to any
pertinent factor. United States v. Vowel], 516 F.3d 503, 510 (6th Cir. 2008).
No. 11-6229
United States v. Phillips
The district court did not plainly err or abuse its discretion in imposing Phillips’s sentence.
Despite Phillips’s argument to the contrary, the district court did not give improper weight to the
,need to avoid sentencing disparities or effectively treat the sentencing guidelines as mandatory.
Rather, the court reasonably concluded that imposing a guidelines sentence would promote the goal
of avoiding unwarranted sentencing disparities, and weighed that factor with several other pertinent
factors when selecting Phillips’s sentence. In addition, before deciding that Phillips’s federal
sentence would run consecutively to his state sentence, the district court discussed with defense
counsel its obligation to consider section 5G1.3(c), and gave proper consideration to the factors
listed in section 5G1.3 cmt. n.3(A). See United States v. Hall, 632 F.3d 331, 336 (6th Cir. 2011).
Finally, the district court’s explanation of the sentence makes clear that, when determining whether
Phillips’s federal sentence would run consecutively to his state sentence, the court neither employed
a presumption that the sentences should be consecutive, nor based its decision on a particular factual
finding concerning when Phillips would be paroled from his state sentence.
Accordingly, we affirm the district court’s judgment.