United States v. McClain , 429 F. App'x 538 ( 2011 )

File Name: 11a0461n.06
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 07-1284
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA,
Jul 08, 2011
Plaintiff-Appellee, LEONARD GREEN, Clerk
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
DUANE MILTON MCCLAIN, JR., aka Deuce, COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
Defendant-Appellant.
/
Before: MARTIN, NORRIS, and SILER, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Duane Milton McClain, Jr. pled guilty to
conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, five
kilograms or more of cocaine, one kilogram or more of heroin, and 100 kilograms or more of
marijuana. McClain’s Sentencing Guidelines range was from twelve years and seven months to
fifteen years and eight months. The district court sentenced him to thirteen years imprisonment. On
appeal, McClain makes four main arguments: (1) the district court committed plain error by failing
to respond to his mitigation argument; (2) the district court committed plain error by failing to state
his Guidelines range on the record; (3) the district court’s drug quantity determination was clearly
erroneous; and (4) we should remand this case to the district court to consider McClain’s motion for
No. 07-1284
United States v. McClain
Page 2
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). Because these arguments are not
meritorious, we AFFIRM the decision of the district court.
I. BACKGROUND
McClain was involved in a large-scale drug trafficking organization buying and selling
powder cocaine, crack cocaine, and marijuana from 2004 until his arrest on September 20, 2005.
McClain and a number of codefendants were charged with a variety of crimes, and McClain pled
guilty to conspiracy to distribute and possess with intent to distribute fifty or more grams of cocaine
base, five kilograms or more of cocaine, one kilogram or more of heroin, and 100 kilograms or more
of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), and 846.1 The parties agreed
that the conspiracy involved at least five kilograms of powder cocaine and at least fifty grams of
cocaine base.
The Probation Department prepared a Presentence Report, which compiled a number of
statements from McClain’s codefendants regarding the amount of drugs that should be attributed to
him. The Report recommended that he be held responsible for ninety kilograms of powder cocaine
and 160 grams of crack cocaine based on statements by codefendant Jamokenteyatte Hampton.
These amounts yielded a recommended base offense level of thirty-six.
McClain objected to the drug quantity that the Report attributed to him. He submitted a
sentencing memorandum in which he argued that although Hampton’s statements supported a base
1
McClain was also charged with other drug crimes, but the United States agreed to dismiss those charges, and
they are irrelevant to this appeal.
No. 07-1284
United States v. McClain
Page 3
offense level of thirty-six, the statements of several other codefendants supported a base offense level
of only thirty-four.
The district court conducted a sentencing hearing on February 15, 2007. McClain argued,
consistent with his sentencing memorandum, that his base offense level should be set below thirty-
six. The district court stated that it had reviewed the guilty plea transcript, and later noted that it had
reviewed the sentencing memorandum. It stated that because McClain pled guilty to conspiracy, he
was responsible for any drug quantities that were a reasonably foreseeable consequence of the
conspiracy. The district court found McClain to be responsible for at least fifteen but less than fifty
kilograms of powder cocaine and at least 150 but less than 500 grams of cocaine base, yielding a
base offense level of thirty-four. The district court granted McClain a three-level downward
departure for acceptance of responsibility and reduced his offense level to thirty-one, with a criminal
history category IV. Defense counsel asked the district court to consider McClain’s cooperation in
an unrelated state murder case, and the government confirmed his cooperation.
McClain’s offense level and criminal history category yielded a Guidelines range of twelve
years and seven months to fifteen years and eight months, although the district court did not state this
range in terms of months on the record. The district court addressed all of the section 3553(a)
sentencing factors in some detail, and sentenced McClain to thirteen years imprisonment. At the
conclusion of the hearing, the district court asked whether there were any legal objections to the
sentence, and defense counsel responded that there were not.
No. 07-1284
United States v. McClain
Page 4
On April 11, 2008, McClain filed a motion for modification of sentence based on the
retroactive amendments to the crack Sentencing Guidelines. On April 16, the district court ordered
the motion held in abeyance due to McClain’s projected release date.
McClain makes four arguments on appeal: (1) the district court committed plain error by
failing to respond to his mitigation argument; (2) the district court committed plain error by failing
to state his Guidelines range on the record; (3) the district court’s drug quantity determination was
clearly erroneous; and (4) we should remand this case to the district court to consider McClain’s
motion for reduction of sentence.
II. ANALYSIS
A. Standard of Review
Although McClain argues that this Court should not review allegations of procedural error
not preserved at sentencing for plain error, the en banc Court has held to the contrary. See United
States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). McClain concedes that we have no
authority to depart from this rule. See Salmi v. Sec’y of Health & Human Serv., 774 F.2d 685, 689
(6th Cir. 1985). Thus, we must apply the plain error standard of review to McClain’s claim of
procedural unreasonableness. Plain error requires a defendant to show “(1) error (2) that was
obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the fairness,
integrity, or public reputation of the judicial proceedings.” Vonner, 516 F.3d at 386 (internal
quotation marks and citation omitted).
B. Mitigation Argument
No. 07-1284
United States v. McClain
Page 5
McClain argues that the district court failed to explain in sufficient detail why it rejected his
argument for a downward variance based on his cooperation with state authorities. A district court’s
failure to adequately explain its chosen sentence renders the sentence procedurally unreasonable.
United States v. Hall, 632 F.3d 331, 335 (6th Cir. 2011). “Although Congress requires a court to
give ‘the reasons’ for its sentence, 18 U.S.C. § 3553(c), it does not say that courts must give the
reasons for rejecting any and all arguments by the parties for alternative sentences.” Vonner, 516
F.3d at 387. Instead, “[r]eversible procedural error occurs if the sentencing judge fails to ‘set forth
enough [of a statement of reasons] to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decision making authority.’” United
States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007) (quoting Rita v. United States, 551 U.S. 338, 356
(2007) (brackets in original)). Here, the district court stated that it had reviewed McClain’s
sentencing memorandum, which set forth his mitigation argument. In addition, the district court
discussed the section 3553(a) sentencing factors in some detail. Thus, we hold that any error in
failing to respond to McClain’s mitigation argument did not rise to the level of plain error.
C. Guidelines Range Calculation
McClain argues that even if the district court correctly calculated his base offense level and
criminal history category, it erred by failing to state his Guidelines range on the record in terms of
months. A district court’s failure to calculate the Guidelines range or its improper calculation of the
range renders a sentence procedurally unreasonable. Hall, 632 F.3d at 335. A district court must
generally “acknowledge the defendant’s applicable Guideline range.” United States v. Blackie, 548
F.3d 395, 400 (6th Cir. 2008) (internal quotation marks and citation omitted). Thus, the district court
No. 07-1284
United States v. McClain
Page 6
arguably erred by failing to explicitly state the range on the record. However, McClain is unable to
demonstrate that this error affected his substantial rights and therefore cannot satisfy the
requirements under our plain error review. The district court correctly calculated his base offense
level and criminal history category and gave him a within-Guidelines sentence. Furthermore, the
district court adequately explained the sentence. Cf., e.g., United States v. Kingsley, 241 F.3d 828,
836 (6th Cir. 2001) (finding that a court’s failure to explain its reasoning for exacting a condition
of supervised release does not amount to plain error if the supporting reasons are evident on the
overall record). It appears from the overall record that the district court was aware of the correct
Guidelines range, and it provided enough information and reasoning to enable us to conduct
meaningful appellate review. Therefore, we hold that the district court’s failure to state the
Guidelines range on the record did not amount to plain error.
D. Drug Quantity Determination
McClain argues that the district court’s drug quantity determination was clearly erroneous.
This Court reviews a district court’s factual calculation of the drug quantity attributable to a
defendant for clear error. United States v. Olsen, 537 F.3d 660, 663 (6th Cir. 2008). “[T]he district
court must set forth the evidence upon which it relies and make specific findings that are supported
by a preponderance of the evidence.” United States v. Long, 190 F.3d 471, 478 (6th Cir. 1999). If
the precise amount of drugs is uncertain, then “the district court may estimate the amount, but the
court must err on the side of caution.” United States v. Gardner, 417 F.3d 541, 546 (6th Cir. 2005)
(internal quotation marks and citation omitted).
No. 07-1284
United States v. McClain
Page 7
McClain conceded in his sentencing memorandum that the statements of his coconspirators
support a base offense level of thirty-four. A defendant who expressly concedes that he should be
held accountable for a certain quantity of drugs is estopped from later challenging a court’s factual
finding on that issue. See United States v. Nesbitt, 90 F.3d 164, 168 (6th Cir. 1996) (“Because
defendant expressly agreed that he should be held accountable for 139 kilograms, he cannot now
challenge the court’s factual finding on this issue.”). Thus, we hold that the district court’s drug
quantity determination was not clearly erroneous.
E. Motion for Reduction of Sentence
McClain asks us to remand the case to the district court for consideration of his motion for
a reduction of his sentence. However, this Court has taken this course of action only when the
defendant has not yet filed a motion. See United States v. Simmons, 587 F.3d 348, 366 (6th Cir.
2009) (remanding for consideration under section 3582(c) in the absence of a motion for reduction
of sentence); United States v. Poole, 538 F.3d 644, 645-46 (6th Cir. 2008) (remanding so that the
district court could consider an anticipated motion for reduction of sentence); United States v.
Ursery, 109 F.3d 1129, 1138 (6th Cir. 1997) (remanding to allow defendant to make a motion for
reduction of sentence). Furthermore, the Fourth Circuit has explained that:
It is . . . for the district court to first assess whether and to what extent [defendant’s]
sentence may be thereby affected, and that court is entitled to address this issue either
sua sponte or in response to a motion by [defendant] or the Bureau of Prisons. See
18 U.S.C. § 3582(c)(2). Accordingly, we need not remand for resentencing in order
for [defendant] to pursue relief in the district court under Amendment 706, and we
decline to do so. However, this decision is rendered without prejudice to
[defendant’s] right to pursue such relief in the sentencing court.
No. 07-1284
United States v. McClain
Page 8
United States v. Brewer, 520 F.3d 367, 373 (4th Cir. 2008). McClain has already pursued relief in
the district court, and declining to remand the case would not prejudice his right to any such relief.
Thus, we will simply allow McClain’s motion to be adjudicated in the normal course of the district
court’s proceedings.
III. CONCLUSION
The district court did not commit plain error by failing to respond to McClain’s mitigation
argument or by failing to state the Guidelines range on the record. In addition, the district court’s
drug determination was not clearly erroneous. Furthermore, we find it unnecessary to remand this
case to the district court to consider McClain’s motion for reduction of sentence. Thus, we
AFFIRM the decision of the district court.