United States v. Trory Herrod

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 09a0572n.06
No. 07-2197 FILED
Aug 19, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
) ON APPEAL FROM THE UNITED STATES
v. ) DISTRICT COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
)
TRORY QUANTE HERROD, )
) OPINION
Defendant-Appellant. )
)
Before: CLAY and SUTTON, Circuit Judges; THAPAR, District Judge.*
THAPAR, District Judge. Trory Herrod pled guilty to possession with intent to distribute
a controlled substance, and the district court sentenced him to a term of 188 months in prison. On
appeal, Herrod claims that the sentence was procedurally and substantively unreasonable.
Specifically, he argues that the district court should be reversed because it: (1) did not understand
that it had discretion to depart downward from the advisory guideline range; (2) did not consider his
argument for a lesser sentence; and (3) gave too much weight to the advisory guidelines when
considering the sentencing factors under 18 U.S.C. § 3553(a). For the reasons set forth below, we
AFFIRM the sentence imposed by the district court.
*
The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Background
On December 20, 2006, a federal grand jury indicted Trory Herrod (“defendant”) for
possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 841(b)(1)(B)(iii). The grand jury also indicted the defendant for being
a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). On March 27, 2007, the
defendant pled guilty to the possession with intent to distribute charge. The United States agreed
to drop the felon in possession charge.
The presentence investigation report (“PSR”) classified the defendant as a career offender
under U.S.S.G. § 4B1.1 because he had two prior felony convictions involving controlled substances.
Under § 4B1.1, classification as a career offender carries a mandatory criminal history category
designation of VI and also raises the base offense level to 34 for a conviction under 21 U.S.C. §
841(b)(1)(B)(iii). After accounting for the defendant’s acceptance of responsibility, the defendant
finished with a base offense level of 31 and criminal history category of VI resulting in a sentencing
range of 188 to 235 months.
On September 10, 2007, the district court held a sentencing hearing and reviewed the
advisory guideline range in the PSR. The defendant did not object to the calculation in the PSR.
Next, the district court asked counsel for the United States and the defendant “what sentencing
considerations pertinent to 3553(a) should affect the sentence.” The United States deferred to the
sentencing guideline recommendation in the PSR. With respect to the career offender status, defense
counsel asked the district court to consider that the defendant’s prior two convictions concerned
“small quantities of cocaine.” Although defense counsel never specifically asked for a departure
2
under U.S.S.G. § 4A1.3 or a variance, defense counsel did ask the district court to “exercise the
discretion that the court has” with respect to the career offender status.
After defense counsel rested, the district judge addressed the parties. Noting that the district
court is not bound to adhere to the guidelines under Booker v. Washington, 543 U.S. 220 (2005), the
district judge stated:
The second thing that Booker talked about was that the Court should pay a special
attention to 18 U.S.C. [§] 3553(a), which discusses the things that happen during a
sentencing. And because the Court did not say which is more important, I take them
as both being important, and I give equal weight to both.
After adopting the PSR’s guidelines calculation, the district court considered whether any
of the departures provided for in the guidelines applied in the case, stating:
The second step or the next step is whether a departure is warranted under any
guideline section which permit nonspecific departures for exceptional circumstances.
Those sections include 5K2.0, 4A1.3 and other sections. These kind[s] of
adjustments allow for nonspecific departures for exceptional circumstances in certain
cases that are generally referred to as Koon departures after the Supreme Court case
of the same name.
For the record, I have determined that the circumstances of this case are not so
exceptional as to form the factual basis for any such departure.
The district court then considered the factors required by 18 U.S.C. § 3553(a). After reciting
these factors, the district judge stated:
[Defense counsel] addressed himself to the convictions of this defendant and the
scores that results in, especially the Roman Numeral VI Criminal History. He arrives
at that probably the same way I did. He has been arrested 50 times, or more than 50
times, resulting in three felony convictions and 40 misdemeanor convictions. The
amazing thing about what I've just said is the defendant is 30 years old, and the
longest term he has spent in jail is six months.
Further, the district judge stated, “it’s a strange case in that [Herrod] has so many arrests over
such a s[h]ort period of time, 30 years or less, and more so than anybody else I’ve seen in this
3
courtroom.” Counsel for the defendant and the United States never addressed any of the comments
the district judge made concerning the defendant’s criminal history.
The district court sentenced Herrod to 188 months in prison and acknowledged that the
sentence was at the low end of the guidelines range. After informing the defendant of his right to
appeal the sentence, the district judge asked, “[a]nything else?” After the United States moved to
dismiss the felon in possession charge, defense counsel stated, “[n]othing further, your honor.”
Analysis
On appeal, there are two issues: (1) whether the defendant’s sentence is procedurally
reasonable; and (2) whether it is substantively reasonable.
1. Procedural Reasonableness
In considering procedural reasonableness, this court considers whether the district court
committed a “significant procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Gall v. United States, 128 S. Ct. 586, 597 (2007).1 No such error has been committed
here.
A. The District Court’s Awareness of its Discretion to Depart
As an initial matter, the district court is bound to calculate the guidelines range but is not
bound to follow the guidelines range after Booker. United States v. Bolds, 511 F.3d 568, 579 (6th Cir.
2007). The defendant’s main argument as to procedural unreasonableness is that the district court
1
Because the district court failed to conduct the post-sentencing inquiry required under
United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004), Herrod’s claims are not subject to
plain-error review.
4
failed to recognize that it had the discretion to depart from the sentencing guideline range. This court
reviews de novo whether the district court understood it had discretion to depart. United States v.
Smith, 278 F.3d 605, 609 (6th Cir. 2002) (citing Koon v. United States, 518 U.S. 81, 100 (1996);
United States v. Ebolum, 72 F.3d 35, 37 (6th Cir. 1995) (citations omitted)); see also United States
v. McBride, 434 F.3d 470, 477 (6th Cir. 2006). If the district court did in fact understand its
discretion to depart, this court does not review its choice not to depart. United States v. Puckett, 422
F.3d 340, 345 (6th Cir. 2005) (citing United States v. Stewart, 306 F.3d 295, 329 (6th Cir. 2002)).
In this case, the defendant did not challenge his status as a career offender pursuant to
U.S.S.G. § 4B1.1. Instead, the defendant stated at the sentencing hearing that the district court should
consider the nature of his prior convictions—both were for selling less than $30 worth of cocaine—in
departing from the sentencing guideline range. The defendant did not cite a specific section of the
sentencing guidelines or specifically ask for a variance in making this argument.
The district judge appeared to understand that the defendant was making an argument under
§ 4A1.3 of the guidelines. § 4A1.3(b)(1) provides that a district court may depart if “reliable
information indicates that the defendant's criminal history category substantially over-represents the
seriousness of the defendant's criminal history or the likelihood that the defendant will commit other
crimes.” Indeed, the district judge specifically stated at the hearing that he considered his discretion
to depart and even specifically mentioned his right to depart under § 4A1.3; something he was not
required to do. See United States v. Lucas, 357 F.3d 599, 609-10 (6th Cir. 2004) (“the district court
need not explicitly state that it is aware of its discretionary authority to depart downward, since there
is ‘no duty on the trial judge to state affirmatively that he knows he possesses the power to make a
downward departure, but declines to do so.’” (quoting United States v. Byrd, 53 F.3d 144, 145 (6th
5
Cir. 1995))). Since the district court understood it had the discretion to depart, our review is
complete. See Puckett, 422 F.3d at 345 (citing Stewart, 306 F.3d at 329).
B. The District Court’s Consideration of the Defendant’s Argument Regarding his
Prior Convictions
The defendant argued that the district court should discount his career offender status because
the two underlying convictions involved a “small” amount of drugs. He claims on appeal that the
district court failed to address his argument. He is wrong.
As a preliminary matter, “[w]here a defendant raises a particular argument in seeking a lower
sentence, the record must reflect both that the district judge considered the defendant's argument and
that the judge explained the basis for rejecting it.” United States v. Richardson, 437 F.3d 550, 554
(6th Cir. 2007). In this case, the district court did just that. In considering whether the defendant was
truly a career offender, the district court remarked that the defendant had “more [arrests] than anybody
else I’ve seen in this courtroom.” The defendant’s three felony convictions and 40 misdemeanor
convictions—all before the defendant turned 30 years old—clearly support the statement made by the
district judge. Based on this record, the defendant has truly made a “career” of offending. Moreover,
in light of the defendant’s record, the district court’s decision not to vary was entirely reasonable.
While district courts should consider the entirety of a person’s life work–be it criminal or
otherwise–there is no requirement that a district court always address the criminal history of a
defendant on the narrow grounds the defendant requests.
This court’s recent decision in United States v. Gapinski, 561 F.3d 467 (6th Cir. 2009),
supports the district court’s decision. In Gapinski, the defendant appealed the decision of the district
court denying his request for a departure or variance during sentencing on five different grounds,
6
including the failure to depart downward based on the seriousness of his criminal history. Id. at 474.
While this court remanded the case on other grounds, it did not remand on Gapinski’s claim based
on his criminal history because even though the “the district court did not refer expressly to Gapinski's
arguments on this point, the court was aware that Gapinski had a criminal history category of VI and
discussed Gapinski's prior convictions at length before concluding that Gapinski had shown a ‘long-
term pattern, uninterrupted, of criminal conduct.’” Id. (citations omitted).
Here, the district court was clearly aware of the defendant’s history, considered it, and decided
that it supported the sentence recommended by the guidelines. It did not need to do any more.
2. Substantive Reasonableness
If the procedure used in determining the sentence was reasonable, this court reviews the
substantive reasonableness of the sentence under an abuse of discretion standard. Gall, 128 S. Ct.
at 597. “A sentence may be considered substantively unreasonable when the district court ‘select[s]
the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent
§ 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.’” United States
v. Collington, 461 F.3d 805, 808 (6th Cir. 2006) (quoting United States v. Webb, 403 F.3d 373, 385
(6th Cir. 2005) (modifications in original)). The district court did not commit any of these errors in
this case.
The defendant argues that the district court placed too much weight on the sentencing
guidelines in consideration of the § 3553 factors. At the hearing the district court stated that it gave
“equal weight” to the sentencing guidelines and the other § 3553 factors. More importantly, it
considered all of the § 3553(a) factors. “Section 3553(a) requires the district court to ‘consider’ seven
factors and it is the district court's task to balance those factors when imposing a sentence.” United
7
States v. Blackie, 548 F.3d 395, 400 (6th Cir. 2008) (emphasis added) (citing United States v.
Williams, 436 F.3d 706, 708 (6th Cir. 2006)); see also United States v. Arias-Arrazola, 254 F.App’x
500, 503 (6th Cir. 2007) (holding that § 3553(a) “says that the factors must all be considered, not that
they must be considered with equal weight.”).
After considering and balancing all the factors, the district judge sentenced the defendant to
188 months, which was at the bottom of the recommended guidelines range of 188 to 235 months.
Sentences that fall within the guideline range are presumptively reasonable. See Madden, 515 F.3d
at 609 (citing United States v. Heriot, 496 F.3d 601, 608 (6th Cir. 2007)). The defendant has failed
to rebut the presumption. See United States v. Kavo, 230 F.App’x 554, 559 (6th Cir. 2007). Thus,
the defendant’s sentence is substantively reasonable.
Conclusion
For the foregoing reasons, we AFFIRM.
8
CLAY, Circuit Judge, concurring. During the sentencing hearing, defense counsel argued
that the district court should not sentence Defendant, Trory Herrod (“Herrod”), as a career offender
because Herrod’s prior qualifying convictions involved only small amounts of drugs. In pronouncing
sentence, the district court discussed Herrod’s extensive criminal history and identified a number of
factors that supported sentencing Herrod as a career offender. Although discussing at length the
general issue underlying Herrod’s argument, the court did not explicitly address whether the amount
of drugs involved in Herrod’s prior arrests affected its decision. On appeal, Herrod claims that the
district court committed procedural error by failing to explicitly discuss this particular aspect of his
argument.1
The majority rejects Herrod’s claim, concluding that the sentence imposed by the district court
was procedurally reasonable. While I agree with the majority’s conclusion that the district court’s
sentencing pronouncement was sufficient, I write separately on this particular issue to emphasize that
sentencing judges are responsible for providing an adequate record for appeal. Our case law imposes
this obligation on district courts for reasons of fairness and practicality. From every perspective, it
is preferable for district courts to explicitly address every nonfrivolous argument raised by a
defendant. Expressly articulating the grounds for rejecting the particular claims raised by a defendant,
at least with respect to a defendant’s nonfrivolous arguments, promotes several critical goals: (1) it
provides the defendant with a clear understanding of the basis for his or her sentence; (2) it allows
1
As the majority notes, although Herrod failed to raise this claim before the district court
in a post-sentencing objection, his procedural claim on appeal is not forfeit and thus not subject
to plain-error review because the district court failed to comply with the procedural rule we
established in United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004). See United States v.
Thomas, 498 F.3d 336, 340 (6th Cir. 2007).
9
the public to understand the rationale underlying the chosen sentence; and (3) it helps this Court avoid
the difficulties of parsing the sentencing transcript when determining whether the district court in fact
considered the defendant’s arguments. In fact, if district courts fully complied with this obligation,
many frivolous appeals and clarification remands could be avoided.
I.
During Herrod’s sentencing hearing, defense counsel urged the district court not to sentence
Herrod as a career offender because his prior convictions involved only small amounts of drugs.
Because Herrod’s drug-quantity argument was nonfrivolous, our case law dictates that the district
court was required not only to consider the argument but also to “adequately explain” its reasons for
rejecting it. See United States v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007) (“[O]ur final task is to
ensure that the district court has ‘adequately explain[ed] the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair sentencing.’” (quoting Gall v. United States,
552 U.S. 38, 128 S. Ct. 586, 597 (2007))); United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006)
(explaining that, where “a defendant’s argument and supporting evidence presents an arguably
meritorious claim for a lesser sentence, but there is little to suggest that the district court actually
considered it, then remand may be appropriate”). Even though the district court need not “recite” all
of the factors set forth in § 3553(a) in announcing a defendant’s sentence, it nonetheless “must
articulate its reasoning in deciding to impose a sentence in order to allow for reasonable appellate
review.” United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005).
In defining what constitutes an adequate explanation, however, this Court sometimes has
reached seemingly inconsistent conclusions that turn heavily on the specific factual circumstances of
a given case. For instance, at times we have held that “a sentencing judge is not required to explicitly
10
address every mitigating argument that a defendant makes,” United States v. Madden, 515 F.3d 601,
611 (6th Cir. 2008), while proclaiming on other occasions that, “when the judge makes only a
‘conclusory reference’ to the § 3553(a) factors and does not address the defendant’s arguments
regarding application of those factors, then this court will find the sentence unreasonable,” United
States v. Klups, 514 F.3d 532, 537 (6th Cir. 2008) (quoting Thomas, 498 F.3d at 340-41).
The better practice, obviously, is to require sentencing courts to explicitly address every
nonfrivolous argument raised by the defendant. Such an approach is more consistent with our
overarching concern with encouraging clarity in the sentencing record. See Bostic, 371 F.3d at 873
n.6 (adopting a new procedural rule to offset the inherent “difficulty of parsing a [sentencing]
transcript”); United States v. Herrera-Zuniga, 571 F.3d 568, 580 (6th Cir. 2009) (explaining that we
adopted the Bostic procedure “to help create a more reliable record for appeals, which we believed
would help ‘guid[e] appellate review’” (quoting Bostic, 371 F.3d at 873)); United States v. Johnson,
553 F.3d 990, 996 n.1 (6th Cir. 2009) (vacating defendant’s sentence on the ground that, “on the
record before us, we have no way of ascertaining whether the district judge would have imposed the
same sentence if he had known of his discretion to vary categorically from the crack-cocaine
Guidelines based on a policy disagreement”); United States v. Grams, 566 F.3d 683, 686 n.1 (6th Cir.
2009) (per curiam) (stating that “the district court should still have stated in open court whether it
adopted in part or full the sentencing range and factual findings suggested by the probation office”
because “greater clarity in open court would have aided our appellate review”); United States v.
Blackie, 548 F.3d 395, 401-03 (6th Cir. 2008) (explaining that our procedural requirements regarding
the district court’s sentencing pronouncement are “more than mere administrative burdens or
meaningless formalities, but rather assure that . . . adequate explanation is provided to allow for
11
meaningful appellate review and the perception of a fair sentence”); United States v. Jackson, 408
F.3d 301, 305 (6th Cir. 2005) (explaining that the sentencing court’s failure to provide an adequate
explanation of its reasons for imposing a chosen sentence “renders our reasonableness review
impossible”).
This Court’s concern for encouraging clarity in the record is predicated on and serves to
promote several important interests. Most importantly, requiring district courts to provide a clear
explanation of the basis for its chosen sentence is the only way to ensure that the district court did not
commit procedural error by, for example, failing to conduct the requisite individualized assessment
of the factors set forth in 18 U.S.C. § 3553(a). See Jackson, 408 F.3d at 305. Specifically addressing
all nonfrivolous arguments also helps this Court determine whether the sentencing court in fact
considered all of the arguments raised by the parties. See United States v. Lalonde, 509 F.3d 750,
769-70 (6th Cir. 2007). An explicit discussion of all nonfrivolous arguments also would help
eliminate many frivolous appeals and would avoid many clarification remands, both of which have
become a tremendous waste of judicial resources. And finally, providing a clear statement of reasons
also “enable[s] the public to learn why [a] defendant received a particular sentence.” United States
v. Molina, 356 F.3d 269, 277 (2d Cir. 2004).
Although the district court is not required to explicitly recount every aspect of its thought
process, the Supreme Court has made clear that the sentencing court must, at the very least, “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. Rita, 551 U.S. 338, 356 (2007). Building on the Supreme Court’s decision in Rita, our
decisions in this area demand that, in evaluating whether a sentence is procedurally reasonable, we
12
“review the sentencing transcript to ensure . . . that the sentencing judge adequately considered the
relevant § 3553(a) factors and clearly stated [on the record] his reasons for imposing the chosen
sentence.” United States v. Liou, 491 F.3d 334, 339 (6th Cir. 2007) (emphasis added); United States
v. Bolds, 511 F.3d 568, 580 (6th Cir. 2007) (explaining that the district court must “provide a clear
explanation [on the record] of why it has either accepted or rejected the parties’ arguments and
thereby chose the particular sentence imposed, regardless of whether it is within or outside of the
Guidelines” (emphasis added)).
In other words, it is not enough that the district court consider the parties’ nonfrivolous
arguments, it also must explain on the record its reasons for accepting or rejecting such arguments.
Requiring district courts to articulate their reasoning on the record is critical, otherwise the transcript
would be devoid of any evidence that the district court in fact considered the parties’ arguments, let
alone ruled on those issues. Absent such a public statement, this Court would be forced to make
inferences and guess at what arguments and sentencing factors the district court actually considered
when determining a defendant’s sentence, something we repeatedly have expressed disdain for doing.
See United States v. Vonner, 511 F.3d 568, 580 (6th Cir. 2007) (en banc) (acknowledging the
deference we owe to the district court in this context, but holding that the sentencing judge
nonetheless “must explain his reasons for selecting the sentence imposed” and that “the record must
contain the district court’s rationale for concluding that the sentence imposed is ‘sufficient but not
greater than necessary, to comply with the purposes’ of sentencing set forth in 18 U.S.C. § 3553(a)”);
United States v. Jones, 489 F.3d 243, 251 (6th Cir. 2007) (“[W]hen ‘a defendant raises a particular
argument in seeking a lower sentence, the record must reflect both that the district judge considered
the defendant's argument and that the judge explained the basis for rejecting it.’” (quoting United
13
States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006))). This obligation also follows from the fact
that the Federal Rules of Criminal Procedure require the district court to rule on all disputed matters
in pronouncing sentence, see Fed. R. Crim. P. 32(i)(3)(B), as well as the statutory requirement that
the court, “at the time of sentencing, shall state in open court the reasons for its imposition of the
particular sentence,” 18 U.S.C. § 3553(c).
Admittedly, this Court at times has permitted a sentence to stand where “[n]o one would call
[the district court’s] explanation ideal.” Vonner, 516 F.3d at 386. Such leniency, however, is rare
and generally is limited to those cases where our review is limited by the plain-error standard. See,
e.g., id. In any event, we must not allow such leniency to become the norm because “[c]riminal
sentencing is a serious business, and we should encourage district court judges to adopt sentencing
practices that resolve potential sentencing disputes at the hearing, not on appeal.” Id. at 391.
Thankfully, we have not. In fact, other than a few, limited instances, this Court has insisted that the
district court provide a clear explanation of the grounds supporting its chosen sentence. Under this
controlling rule, a vague sentencing explanation must be deemed procedurally unreasonable because
it raises serious questions about whether the court misunderstood its authority, failed to conduct the
requisite review of the § 3553(a) factors, or failed to consider a defendant’s argument.
For all of these reasons, it is clear that the better practice—and the one required by our case
law—is for the district court to explicitly address all of the nonfrivolous arguments that a defendant
raises in support of a lower sentence. Absent an express statement of the court’s reasoning, we are
confronted with the unenviable task of “parsing a [sentencing] transcript” to infer whether the court
in fact fulfilled its obligations in this regard. Bostic, 371 F.3d at 873 n.6. Although the sentencing
court certainly is not required to address the minutiae of every argument raised by a defendant, neither
14
is it adequate for the court to state vaguely that it has considered the defendant’s “criminal
history”—something more is required. See United States v. Gale, 468 F.3d 929, 940 (6th Cir. 2006)
(where “a defendant’s argument and supporting evidence presents an arguably meritorious claim for
a lesser sentence, but there is little to suggest that the district court actually considered it, then remand
may be appropriate”). Fundamentally, procedural reasonableness requires an “articulation of the
reasons the district court reached the sentence ultimately imposed.” Jackson, 408 F.3d at 305.
Accordingly, the record must reflect, at a minimum, not only that the court considered the issue, but
also why the court rejected the argument. As we explained in United States v. Richardson:
We emphasize the obligation of the district court in each case to communicate clearly
its rationale for imposing the specific sentence. Where a defendant raises a particular
argument in seeking a lower sentence, the record must reflect both that the district
judge considered the defendant’s argument and that the judge explained the basis for
rejecting it. This assures not only that the defendant can understand the basis for the
particular sentence but also that the reviewing court can intelligently determine
whether the specific sentence is indeed reasonable.
437 F.3d at 554 (emphasis added). Thus, while there is no requirement that the district court
“engage in a ‘ritualistic incantation to establish consideration of a legal issue’” or that the court
“make specific findings relating to each of the factors considered,” the sentencing court certainly
“must articulate at least enough of its reasoning to permit an informed appellate review.” United
States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999) (quoting United States v. Washington, 147
F.3d 490, 491 (6th Cir. 1998)).
Although the district court has some discretion in determining how much of an explanation
is required, our case law makes clear that simply ignoring a defendant’s central and unequivocally
nonfrivolous argument is procedurally unreasonable. A district court is not permitted to reject a
defendant’s arguments sub silentio. See United States v. Penson, 526 F.3d 331, 338 (6th Cir. 2008)
15
(“[T]he district court provided virtually no explanation giving insight into the reasons for the specific
sentence given.”); Bolds, 511 F.3d at 580 (“The district court must provide a clear explanation of
why it has either accepted or rejected the parties’ arguments and thereby chosen the particular
sentence imposed, regardless of whether it is within or outside of the Guidelines.”);Thomas, 498
F.3d at 340 (vacating sentence as procedurally unreasonable because “[t]he record ma[de] clear that
the district court considered the applicable Guidelines range, but not much else”); United States v.
Houston, 529 F.3d 743, 759-60 (6th Cir. 2008) (Clay, J., dissenting) (“In short, well-established
precedent requires reversal where the sentencing court fails to explain to the defendant, and this
Court, how it arrived at its sentencing determination, including how it considered defense arguments
and the § 3553(a) factors.”).
II.
Because the district court went to great lengths to explain its reasons for sentencing Herrod
as a career offender, I agree with the majority’s conclusion that the district court provided an
adequate explanation for rejecting Herrod’s drug-quantity argument and imposing the chosen
sentence. On this record, we can be satisfied that the court considered the substance of Herrod’s
argument that he should not be sentenced as a career offender and disagreed that the small amount
of drugs involved in Herrod’s two prior offenses was the most salient factor in determining whether
the career-offender enhancement should be applied.
In pronouncing Herrod’s sentence, the district court made clear that it was aware that the
sentencing range prescribed under the Guidelines was advisory. The district court then recited and
considered the factors set forth in 18 U.S.C. § 3553(a). After reciting these factors, the district court
16
explicitly noted that it agreed with the sentencing range calculated by the probation officer,
explaining that:
[Defense counsel] addressed himself to the convictions of this defendant and the
scores that results in, especially the Roman Numeral VI Criminal History. He arrives
at that probably the same way I did. He has been arrested 50 times, or more than 50
times, resulting in three felony convictions and 40 misdemeanor convictions. The
amazing thing about what I’ve just said is the defendant is 30 years old, and the
longest term he has spent in jail is six months.
(ROA vol. 2 at 12.) Further, the district judge stated, “it’s a strange case in that [Herrod] has so
many arrests over such a s[h]ort period of time, 30 years or less, and more so than anybody else I’ve
seen in this courtroom.” (ROA vol. 2 at 13.) The district court then expressly identified many of
the issues raised by Herrod as well as other factors contained in the presentence report, including
Herrod’s personal circumstances, his personal and family history, and even the circumstances that
drove Herrod to return to selling drugs.
Although the court did not address the particular aspect of Herrod’s argument relating to the
quantity of drugs involved in his prior arrests, the record does evince that the court addressed at
length the concerns underlying Herrod’s argument, specifically discussed Herrod’s criminal history,
and ultimately concluded that sentencing Herrod as a career offender was appropriate because
Herrod’s “[lengthy criminal] record speaks more accurately of the defendant’s chance for
recidivism.” (ROA vol. 2 at 14.) In rejecting Herrod’s argument, the court emphasized Herrod’s
“amazingly long criminal record,” and thus “determined that the circumstances of this case are not
so exceptional as to form the factual basis for any such departure.” (ROA vol. 2 at 11-14.)
On this record, I agree with the majority’s conclusion that the district court’s explanation of
the sentence imposed is adequate.
17