United States v. James Crews

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0186n.06
No. 09-2402
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Mar 28, 2011
UNITED STATES OF AMERICA, LEONARD GREEN, Clerk
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
JAMES LEE CREWS, EASTERN DISTRICT OF MICHIGAN
Defendant-Appellant.
/
BEFORE: MERRITT, CLAY, and GRIFFIN, Circuit Judges.
CLAY, Circuit Judge. Defendant James Lee Crews appeals the reasonableness of his 72
month sentence imposed by the district court for knowingly possessing with intent to distribute five
grams or more of cocaine base in violation of 21 U.S.C. § 841, and knowingly conspiring to possess
with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841 and 846.
For the reasons stated below, we AFFIRM Defendant’s sentence.
STATEMENT OF FACTS
On January 8, 2007, Michigan State Police officers arranged to buy two ounces of crack
cocaine at a motel in Flint, Michigan from Samuel Sharon Upchurch, Defendant Crews’ co-
defendant in this case. Defendant and Upchurch arrived at the motel together, and proceeded to the
motel room where the controlled buy was scheduled to take place. After Defendant and Upchurch
No. 09-2402
arrived at the designated motel room, police officers searched Defendant and Upchurch. The police
found 45.34 grams of cocaine on Defendant’s person, which Defendant had offered to sell to the
police.
On April 18, 2007, a federal grand jury returned an indictment against Defendant Crews and
Upchurch. The indictment charged Defendant with one count of knowingly possessing with intent
to distribute five grams or more of cocaine base in violation of 21 U.S.C. § 841, and one count of
knowingly conspiring to possess with intent to distribute five grams or more of cocaine base in
violation of 21 U.S.C. §§ 841 and 846.
Initially, Defendant pled guilty to knowingly possessing with intent to distribute five grams
or more of cocaine base in violation of 21 U.S.C. § 841 on January 30, 2009, pursuant to a Rule 11
plea agreement. Subsequently, Defendant breached the plea agreement, and the government moved
for its withdrawal. Defendant’s counsel agreed to withdrawal of the plea agreement, and on May
29, 2009 the district judge granted the government’s motion to withdraw. Defendant did not,
however, withdraw his guilty plea as to this count. On September 4, 2009, Defendant also pled
guilty to knowingly conspiring to possess with intent to distribute five grams or more of cocaine base
in violation of 21 U.S.C. §§ 841 and 846.
The Presentence Report (“PSR”) calculated Defendant’s offense level at twenty-five and
Defendant’s criminal history category at III, producing an advisory guidelines range of 70 to 87
months of incarceration. Neither party objected to the PSR’s calculations. However, Defendant
filed a motion requesting that the district court depart downward from the guidelines range, arguing
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that Defendant’s criminal history category of III overstated the significance of Defendant’s criminal
history.
The district court sentenced Defendant on October 16, 2009. After the parties explained their
sentencing requests, the district judge stated that he was “going to impose a sentence sufficient but
not greater than necessary to comply with the purposes set forth in 18 U.S.C. § 3553(a).” (R.59, Tr.
of Sentencing at 19.) Specifically, the district court explained:
The Court has considered the nature of the circumstances of the offense. I saw the
crack cocaine. It was a significant amount of crack cocaine that you were dealing .
. . . You were found to be in possession of 45.34 grams of crack cocaine and of
course 5.3 grams of marijuana was found in the car. So it is a serious offense.
Considering your history and characteristics . . . . You’re going to be 25 in another
month. I noted that your parents were married. Your mother eventually re-married,
you were raised by your step-father. You didn’t have any contact with your natural
father . . . . I noted that you have a history of depression. You have substance abuse
issues with alcohol and marijuana which I will deal with later in the sentence I
impose. You have a ninth grade education. You have no vocational skills and let’s
turn to your employment . . . . I’m trying to figure out how you supported yourself the
last seven or eight years. I know you were – clearly know you were dealing drugs,
but outside of dealing drugs I’m wondering how you supported yourself . . . . I don’t
see where you have a real good work history at all. It’s just the opposite, which
makes me wonder how you supported yourself all these years. I have considered
your history and your characteristics. I have considered the need for the sentence
imposed to reflect the seriousness of the offense. Now, for about fourteen years . .
. I’ve been dealing in cases involving crack and powder cocaine. Crack cocaine is
much more addictive, much more serious than powder cocaine. People that use crack
cocaine [have] a much, much higher rate of addiction where they just can’t make the
break after using it the first time they take it. So – and we know you were found with
a substantial amount of crack cocaine and we know what crack cocaine does to
people, it destroys lives, it destroys families. So this is a serious offense. You were
dealing crack cocaine. Not a little bit of crack cocaine, you were not sitting on a
corner dealing a little bit of crack cocaine, you had a lot of crack cocaine . . . . [F]rom
where I sit today, I’m certainly not comfortable saying that when you get done with
your term of incarceration that you will not . . . go back and continue to commit
crimes and continue to deal drugs.
(Id. at 19-22.)
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No. 09-2402
After laying out its perception of Defendant and his offense, the district court discussed the
statutory requirements in imposing Defendant’s sentence.
The Court has considered the kinds of sentences available, in fact, the guidelines are
correctly scored at 70-87 months . . . . [T]he Court has considered the kinds of
sentences available and the sentencing range of the guidelines that are of course
advisory. The Court has considered the need to avoid unwarranted sentencing
disparities, amongst defendants with similar records, so the Court has considered all
factors under 18 U.S.C. Section 3553(a) in imposing the sentence.
(Id. at 22.)
Finally, the district court discussed Defendant’s sentence in light of his individual
characteristics. The district court stated,
So, who do I have in front of me? I have an individual with minimal contacts in the
community. I have an individual with a sketchy – sketchy employment history. I
have an individual who has not taken any steps that I’ve seen to better himself and
better society. I have an individual who deals crack cocaine . . . and I have an
individual who has been convicted of counts three and four . . . . For [those]
convictions . . . this Court considering the sentencing guidelines which are of course
advisory and the factors contained in U.S.C. Section 3553(a) . . . hereby commits you
to the custody of the United States Bureau of Prisons for a term of 72 months on each
of counts three and four to run concurrent . . . . Upon release you will be placed on
supervised release for a term of three years on each count to run concurrent.
(Id. at 22-23.)
After sentencing Defendant, the district court asked the parties if they had any objections to
the sentence. Neither party objected. (Id. at 25.)
Defendant timely appealed his sentence to this Court.
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No. 09-2402
DISCUSSION
This Court “review[s] all sentences – whether inside, just outside, or significantly outside the
Guidelines range – under a deferential abuse-of-discretion standard.” United States v. Bolds, 511
F.3d 568, 578 (6th Cir. 2007). This reasonableness review “has two components: procedural and
substantive.” Id. at 578. “Consequently, [the Court’s] reasonableness review requires inquiry into
both the length of the sentence and the factors evaluated and the procedures employed by the district
court in reaching its sentencing determination.” United States v. Herrera-Zuniga, 571 F.3d 568, 581
(6th Cir. 2009).
Defendant challenges the procedural and substantive reasonableness of his sentence.
Specifically, Defendant contends that his sentence is unreasonable for three principal reasons: (1)
it was based on a disparity between the advisory guidelines ranges for crack and powder cocaine
offenses; (2) it is disproportionately longer than that of his co-defendant, Samuel Upchurch; and (3)
Defendant’s criminal history category of III substantially over-represents the seriousness of his prior
offenses. Because Defendant does not clarify which of his objections challenge his sentence’s
procedural reasonableness, and which challenge its substantive reasonableness, we will evaluate the
procedural and substantive reasonableness of each.
I. Procedural Reasonableness
A. Standard of Review
In reviewing a challenge for procedural reasonableness, this Court applies one of two
standards of review. This Court reviews preserved sentencing challenges “under a deferential abuse-
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No. 09-2402
of-discretion standard for reasonableness.” Id. However, “[w]here a defendant fails to properly
preserve an issue for appeal, that claim is subject to a review for plain error only.” Id. at 580.
B. Analysis
Prior to evaluating the procedural reasonableness of Defendant’s sentence, this Court must
“determine what standard of review applies” by “determin[ing] whether [Defendant] preserved these
claims for appeal.” Bolds, 511 F.3d at 578. As we held in United States v. Bostic, 371 F.3d 865
(6th Cir. 2004), “district courts are required, after announcing sentence, to ask the parties whether
they have any objections to the sentence that have not previously been raised.” Herrera-Zuniga, 571
F.3d at 578. If the defendant fails to raise an error “[w]here the sentencing judge complies with this
procedure, the defendant generally forfeits the right to challenge on appeal any procedural errors to
which he did not object at the time of sentencing.” Id. Unpreserved procedural challenges will be
reviewed for plain error only. Id. at 581.
Defendant challenges the procedural reasonableness of his sentence based on the sentencing
guidelines’ crack/powder disparity, the divergence between Defendant’s and Upchurch’s sentences,
and his contention that Defendant’s category III criminal history substantially over-represents the
seriousness of his criminal history. As required by Bostic, after sentencing Defendant, the district
court asked whether Defendant had any objections to the sentence. (R.59, Tr. of Sentencing at 25.)
Defendant did not object to his sentence at the sentencing hearing; therefore, we review the
procedural reasonableness of Defendant’s sentence for plain error.
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No. 09-2402
Procedural reasonableness review “begins with a robust review of the factors evaluated and
the procedures employed by the district court in reaching its sentencing determination.” Bolds, 511
F.3d at 578. Specifically,
[i]n reviewing sentences for procedural reasonableness the Court must ensure that the
district court: (1) properly calculated the applicable advisory Guideline range; (2)
considered the other § 3553(a) factors as well as the parties’ arguments for a sentence
outside the Guidelines range; and (3) adequately articulated its reasoning for
imposing the particular sentence chosen, including any rejection of the parties’
arguments for an outside-Guidelines sentence and any decision to deviate from the
advisory Guidelines range.
Id. at 581.
In reviewing the district court’s application of the § 3553(a) factors “there is no requirement
. . . that the district court engage in a ritualistic incantation to establish consideration of a legal issue”
or that it “make specific findings related to each of the factors considered.” Id. However, in order
for a sentence to be procedurally reasonable “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).” Id. The district court must provide “an
articulation of the reasons [it] reached the sentence ultimately imposed.” United States v. Jackson,
408 F.3d 301, 305 (6th Cir. 2005). This Court has further explained that, “[s]imply listing the §
3553(a) factors and various characteristics of the defendant without referring to the applicable
Guidelines range or explaining the decision to stay within or deviate from that range is insufficient.”
Bolds, 511 F.3d at 580 (quoting United States v. Cousins, 469 F.3d 572, 577 (6th Cir. 2006)).
Instead, to be procedurally reasonable, “[t]he district court must provide a clear explanation of why
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No. 09-2402
it has . . . chosen the particular sentence imposed, regardless of whether it is within or outside of the
Guidelines.” Bolds, 511 F.3d at 580.
Moreover, to establish plain error in an unreserved procedural reasonableness challenge, “a
defendant must 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.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).
“This Court’s opinion in Vonner shows that plain error review should be extremely
deferential to the sentencing judge.” United States v. Wallace, 597 F.3d 794, 804 (6th Cir. 2010)
However, the Vonner “majority acknowledged that the crucial question is ‘whether the record makes
clear that the sentencing judge . . . was fully aware of the defendant’s circumstances and took them
into account in sentencing him.’” Id. (quoting Vonner, 516 F.3d at 387). Vonner “emphasizes that
the record must make clear that the sentencing judge considered the evidence and arguments” in
sentencing Defendant. Id. at 805 (same).
1. Crack/Powder Sentencing Disparity
Defendant first contends that had he “possessed and conspired to [] possess with intent to
distribute 45 grams of powder cocaine on January 8, 2007, his base offense level would have been
14, his total offense level with a two level adjustment for acceptance of responsibility, and his
advisory guideline range would become 15-21 months.” (Br. of Appellant at 11.) Therefore,
Defendant requests that this Court “remand this case to the district court to consider a variance from
the crack/powder disparity.” (Id. at 14.)
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No. 09-2402
The Supreme Court stated in Spears v. United States, that “district courts are entitled to reject
and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those
Guidelines.” 555 U.S. 261, 129 S. Ct. 840, 843-44 (2009) (per curiam); see also Kimbrough v.
United States, 552 U.S. 85, 110 (2007) (“[I]t would not be an abuse of discretion for a district court
to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence
greater than necessary to achieve § 3553(a)’s purposes, even in a mine-run case.”).
However, as Defendant recognizes, “[t]he Sixth Circuit has repeatedly rejected constitutional
challenges to the crack/powder disparity including those based on due process, equal protection and
the Eighth Amendment.” (Br. of Appellant at 11.); see also United States v. Blair, 214 F.3d 690,
702 (6th Cir. 2000); United States v. Bingham, 81 F.3d 617, 630-31 (6th Cir. 1996); United States
v. Hill, 79 F.3d 1477, 1488-89 (6th Cir. 1996); United States v. Pickett, 941 F.2d 411, 418-19 (6th
Cir. 1991). Moreover, this Court has stated that, “a sentencing court is not required to vary or
disagree with the crack cocaine guidelines post-Kimbrough. A within-Guidelines sentence for a
crack cocaine offense post-Kimbrough may still survive a reasonableness inquiry.” United States
v. Smith, 350 F. App’x 54, 57 (6th Cir. 2009) (italics added). Put simply, discretion to vary from the
guidelines based on policy considerations does not imply a requirement to vary from the guidelines
based on policy considerations.
In sentencing Defendant, the district court explicitly addressed the differences between crack
and powder cocaine. The district court stated,
Now, for about fourteen years . . . I’ve been dealing in cases involving crack and
powder cocaine. Crack cocaine is much more addictive, much more serious than
powder cocaine. People that use crack cocaine [have] a much, much higher rate of
addiction where they just can’t make the break after using it the first time they take
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No. 09-2402
it. So – and we know you were found with a substantial amount of crack cocaine and
we know what crack cocaine does to people, it destroys lives, it destroys families.
So this is a serious offense. You were dealing crack cocaine. Not a little bit of crack
cocaine, you were not sitting on a corner dealing a little bit of crack cocaine, you had
a lot of crack cocaine.
(R. 59, Tr. of Sentencing Hearing at 21.) By explaining the seriousness of crack cocaine in its
estimation, the district court “adequately articulated its reasoning for imposing the particular
sentence chosen.” Bolds, 511 F.3d at 581. The district court thus did not plainly err, and this aspect
of the district court’s sentence was not procedurally unreasonable.
2. Disproportionate Sentencing
Defendant challenges the reasonableness of his sentence based on the disparity between his
72 month sentence, and his co-defendant’s 60 month sentence.
Section 3553(a)(6) requires sentencing courts to “consider the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
conduct.” Moreover,
[i]n considering a sentencing judge’s obligation to address sentencing disparities
under § 3553(a)(6), this Court has been clear that, the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct, does not apply to co-conspirators. This factor concerns
national disparities between defendants with similar criminal histories convicted of
similar criminal conduct.
Wallace, 597 F.3d at 803.
Therefore, in sentencing a defendant, “[a] district judge is not required to consider the
disparity between the sentences of co-defendants. A district judge, however, may exercise his or her
discretion and determine a defendant’s sentence in light of a co-defendant’s sentence.” Id.
Furthermore, to be procedurally reasonable, a sentence “based on consideration of the [§ 3553(a)]
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No. 09-2402
factors does not require a rote listing . . . . The district judge is only under a more rigorous duty to
make explicit its consideration of the factors when a defendant makes a particular argument.” United
States v. Simmons, 501 F.3d 620, 625 (6th Cir. 2007).
In this case, Defendant did not raise the issue of national sentencing uniformity addressed
in § 3553(a)(6) during the sentencing hearing. Thus, the district court was under no specific
obligation to address it in specific detail, particularly as “national uniformity is generally taken into
account by the Sentencing Guidelines, which are almost certainly the best indication of ordinary
practice since most sentences are within the guidelines.” Id. at 626.
Moreover, Defendant did not raise, and indeed could not have raised, the disparity between
his and Upchurch’s sentences, as Upchurch was sentenced several months after Defendant.
Nevertheless, the district court implicitly rejected any challenge based on a divergence between
Defendant’s and Upchurch’s sentences by pointing out that, “Upchurch was in possession of 1.17
grams of crack cocaine. [Defendant] w[as] found to be in possession of 45.34 grams of crack
cocaine and of course 5.3 grams of marijuana was found in the car.” (R. 59, Tr. of Sentencing
Hearing at 19.)
The district court’s discussion of the fact that the police found a significantly greater quantity
of drugs on Defendant’s person than on Upchurch’s person is sufficient to explain any differences
in the co-defendants’ sentences. Defendant’s procedural reasonableness challenge on this ground
thus fails.
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No. 09-2402
3. Criminal History Category
Finally, Defendant argues that his criminal history category substantially over-represents the
seriousness of his prior offenses. The PSR calculated Defendant’s criminal history at III. Although
Defendant moved the district court for a downward departure from that criminal history category,
Defendant did not object to this calculation. Nevertheless, Defendant states that, “[i]t is apparent
from the record that the sentencing judge erroneously concluded that Mr. Crews was a repeat drug
dealer and offender.” (Br. of Appellant at 12.)
This Circuit “has adopted a categorical approach” in determining whether a prior offense is
relevant in determining a Defendant’s criminal history category. “Generally speaking, only the fact
of the prior conviction and the statutory definition of the predicate offense are used to determine”
a Defendant’s criminal history. United States v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006).
Moreover, this Court “generally presumes that district judges are aware that they have [the]
discretionary authority to depart downward” from a criminal history category. United States v.
Smith, 278 F.3d 605, 610 (6th Cir. 2002). However, on review this Court can find “that the usual
presumption that sentencing courts are aware of their authority to depart does not apply.” Id.
In this case, the district court indicated that based on Defendant’s “sketchy – sketchy
employment history,” (R. 59, Tr. of Sentencing Hearing at 22.), it did not believe that Defendant’s
criminal history category over-represented the seriousness of his past criminal activities. The district
court also expressed concern about Defendant’s chances of recidivism, stating that it was “certainly
not comfortable saying that when [Defendant] get[s] done with [his] term of incarceration that [he]
will not . . . go back and continue to commit crimes and continue to deal drugs.” (Id. at 21-22.)
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No. 09-2402
However, there is no evidence that the district court misconstrued Defendant’s sentence, or was
unaware of its discretion to depart downward. In fact, the record in this case suggests the contrary,
that the district court exercised its discretion in refusing to depart downward.
C. Summary
Defendant’s sentence of 72 months of incarceration was not procedurally unreasonable. We
therefore AFFIRM the district court’s decision.
II. Substantive Reasonableness
A. Standard of Review
This Court reviews the substantive reasonableness of a sentence “under a deferential abuse-
of-discretion standard.” Bolds, 511 F.3d at 578. Our substantive reasonableness review “requires
inquiry into . . .the length of the sentence and the factors evaluated . . . by the district court in
reaching its sentencing determination.” Herrera-Zuniga, 571 F.3d at 581.
B. Analysis
Defendant also challenges the substantive reasonableness of his sentence. The district court
sentenced Defendant to a 72 month term of imprisonment, a sentence at the low end of the 70 to 87
month guidelines range.
In contrast to the requirements for procedural reasonableness review, a defendant “is not
required to object to the substantive reasonableness of his sentence to preserve the issue for appeal.”
Id. at 578. Substantive reasonableness review focuses on the appropriateness of “the length of the
sentence,” id. at 581, and scrutinizes whether a sentence is adequate, but not “greater than necessary
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No. 09-2402
to accomplish the sentencing goals identified by Congress in 18 U.S.C. § 3553(a).” Id. at 590. This
Court has elaborated that,
[o]verall, the district court’s task is to impose a sentence sufficient, but not greater
than necessary, to comply with the purposes of the statutory sentencing scheme. A
sentence may be considered substantively unreasonable when the district court selects
a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider
relevant sentencing factors, or gives an unreasonable amount of weight to any
pertinent factor.
United States v. Presley, 547 F.3d 625, 630-31 (6th Cir. 2008).
The substantive reasonableness inquiry “take[s] into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.” Bolds, 511 F.3d at 581. In this
inquiry we “apply a rebuttable presumption of substantive reasonableness” to “sentences within the
Guidelines.” Id.
This Court has clarified that, “[r]egardless of whether [this Court] would have imposed the
same sentence, we must afford due deference to the district court’s decision to determine the
appropriate length of defendant’s sentence, so long as it is justified in light of the relevant § 3553(a)
factors.” Id. at 591.
Here, as discussed above, the district court provided ample reasons for setting Defendant’s
sentence at 72 months. After discussing the significant amount of cocaine base found on
Defendant’s person, and his dubious work history, the district court stated that it considered “the
need of the sentence imposed to show respect for the law, to promote just punishment for the offense
[Defendant] committed, to afford adequate deterrence for criminal conduct and to protect the public
from further crimes committed by [Defendant].” (R. 59, Tr. of Sentencing Hearing at 21.)
Moreover, the district court explained that it was “certainly not comfortable saying that when
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No. 09-2402
[Defendant] get[s] done with [his] term of incarceration that [he] will not . . . go back and continue
to commit crimes and continue to deal drugs.” (Id. at 21-22.) The district court thus appropriately
imposed a sentence that in its view was adequate, but not excessive to accomplish the policies
embodied in the § 3553(a) factors.
C. Summary
The district court did not abuse its discretion in sentencing Defendant to a 72 month term of
incarceration. Giving the district court’s sentence the deference it is due, we find that Defendant’s
sentence was not substantively unreasonable. We therefore AFFIRM Defendant’s sentence.
CONCLUSION
For the foregoing reasons we AFFIRM the district court’s judgment.
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