United States v. Mark Thomas

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0550n.06
No. 11-1800
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT May 30, 2012
LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE WESTERN DISTRICT OF
) MICHIGAN
MARK DOUGLAS THOMAS, JR., )
)
Defendant-Appellant. )
Before: MARTIN, GILMAN, and WHITE, Circuit Judges.
PER CURIAM. Mark Douglas Thomas, Jr., who is represented by counsel, appeals his
sentence following his guilty plea to charges of conspiracy to possess and distribute pseudoephedrine
and to possession of pseudoephedrine.
Thomas entered his guilty plea in 2011. Five co-defendants had also entered guilty pleas and
were sentenced in 2010. Thomas, however, was not arrested until after his co-defendants were
convicted. Each co-defendant reported that Thomas recruited them at a homeless shelter to purchase
pseudoephedrine from various stores, provided them the money for the purchases, and gave them
small amounts of cash for each purchase. Thomas would then take the pseudoephedrine to third
parties, who used the drug to manufacture methamphetamine. Thomas agreed with these statements
and added that he was similarly recruited to purchase pseudoephedrine by methamphetamine
manufacturers. Thomas eventually became the middleman between the manufacturers and his co-
defendants. Thomas identified the methamphetamine manufacturers only by their first names and
gave a general description of where they lived. Thomas stated that he received methamphetamine
and small amounts of money for his services.
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A presentence report calculated Thomas’s advisory sentencing guidelines range as 210 to 262
months of imprisonment. Thomas filed objections to the report, taking issue with a four-level
enhancement to the offense level for being an organizer or leader of his co-defendants. He also
moved for a downward variance, arguing that: 1) the scoring of pseudoephedrine is too harsh under
the guidelines; 2) he should not receive the enhancement for being an organizer or leader; 3) his
criminal history was overstated; and 4) his cooperation with the government should be considered.
At his sentencing hearing, Thomas again argued that he should not receive the enhancement
for being an organizer or leader. He also sought a downward variance because of his cooperation
with the government. The district court rejected the enhancement argument, finding that Thomas
was an organizer or leader of the conspiracy to possess pseudoephedrine. The court noted that the
individuals to whom he gave the pseudoephedrine in exchange for methamphetamine may be
organizers or leaders of a different conspiracy to manufacture methamphetamine. The district court
also rejected the cooperation argument, noting that the other co-defendants had already provided the
government with the facts regarding the drug operation prior to Thomas’s arrest. The court noted
that Thomas’s vague descriptions of the methamphetamine manufacturers had not led to any arrests.
The government requested that the court address the argument raised in the motion for a variance
concerning the alleged overstatement of Thomas’s criminal history. The court did so, noting that
it found Thomas’s criminal history score to be appropriate. Stating that the co-defendants received
sentences in the range of four to six years each, the district court varied downward from the
guidelines range and imposed a sentence of 180 months of imprisonment.
On appeal, Thomas argues that his sentence is unreasonable because 1) he was not an
organizer or leader, 2) pseudoephedrine is scored too harshly under the guidelines, 3) his criminal
history was overstated, and 4) he cooperated with the government.
We review sentences for procedural and substantive reasonableness. Gall v. United States,
552 U.S. 38, 51 (2007). First, we “ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence
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based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If no
procedural error occurred, we “then consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id. A sentence may be substantively unreasonable “if the
district court chooses the sentence arbitrarily, grounds the sentence on impermissible factors, or
unreasonably weighs a pertinent factor.” United States v. Brooks, 628 F.3d 791, 796 (6th Cir.), cert.
denied, 131 S. Ct. 3077 (2011). We review a sentencing determination for reasonableness under a
deferential abuse-of-discretion standard. United States v. Studabaker, 578 F.3d 423, 430 (6th Cir.
2009).
Thomas argues that the district court failed to consider and explain its rejection of his non-
frivolous arguments, citing United States v. Garcia-Robles, 562 F.3d 763, 767 (6th Cir. 2009).
However, the sentencing transcript shows that the district court did consider and explain its reasons
for rejecting the two arguments that Thomas raised at the hearing. The district court also explained
its rejection of the argument that the criminal history was overrepresented, as requested by the
government. Thomas did not raise at the hearing his argument that pseudoephedrine is too harshly
punished. The district court did not have the opportunity to address the issue, and we are not
presented with any finding to review. Thus, our review of this issue is for plain error. See United
States v. Simmons, 587 F.3d 348, 357-58 (6th Cir. 2009). We have previously rejected similar
challenges to the guidelines regarding pseudoephedrine. United States v. Martin, 438 F.3d 621, 636-
37 (6th Cir. 2006). Therefore, no plain error is apparent in this case.
The fact that Thomas desired a more lenient sentence than the downward variance he
received in this case is insufficient for us to disturb the district court’s judgment. See United States
v. Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007). Therefore, we affirm the district court’s
judgment.