RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0099p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-1802
v.
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Defendant-Appellant. -
MATTHEW WOODARD,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 08-00191-001—Janet T. Neff, District Judge.
Argued: December 8, 2010
Decided and Filed: April 21, 2011
Before: MARTIN, NORRIS, and COOK, Circuit Judges.
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COUNSEL
ARGUED: Jacob H. Huebert, Columbus, Ohio, for Appellant. Nils R. Kessler,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Jacob H. Huebert, Columbus, Ohio, for Appellant. Mark V. Courtade,
ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.
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OPINION
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COOK, Circuit Judge. Matthew Woodard pleaded guilty to the manufacture of
1,000 or more marijuana plants, an offense that carries a mandatory minimum sentence
of ten years’ imprisonment. At sentencing, the district court calculated an offense level
of 25 and a criminal history category of III. The district court departed upward two
levels to a criminal history category of V—resulting in a guidelines range of 120–125
months. The court then addressed the 18 U.S.C. § 3553(a) factors and granted an
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No. 09-1802 United States v. Woodard Page 2
upward variance, sentencing Woodard to 180 months’ imprisonment. Woodard appeals,
contending that the district court erred by (1) departing upward based on actions that
formed part of the same course of conduct as the offense of conviction; (2) failing to
explain its placement of Woodard’s criminal history at category V rather than IV; and
(3) imposing a substantively unreasonable sentence. We affirm.
I.
A.
Woodard first presses his view that the court improperly considered conduct
pertaining to his offense of conviction when granting an upward departure for criminal
history. Woodard focuses on two factors in particular: his use of his friend Chris Brown
as a straw man to purchase real estate on his behalf—including the property used for the
marijuana-growing operation—and his pressing Brown to “plead the [F]ifth” when
authorities questioned him. Because defendant’s counsel failed to object at the
sentencing hearing, we review under the well known plain-error standard. See United
States v. Blackie, 548 F.3d 395, 398–99 (6th Cir. 2008).
Assuming for analysis purposes that these actions were indeed part of the same
course of conduct as Woodard’s offense, we agree that the district court erred in
considering them in departing upward. Section 4A1.3(a)(1) permits an upward departure
“[i]f reliable information indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). In
describing the type of conduct that may merit such a departure, the guidelines repeatedly
emphasize the defendant’s past conduct, directing the court to consider various types of
“[p]rior similar misconduct,” “[p]rior similar adult criminal conduct,” and “[p]rior
sentence(s).” Id. § 4A1.3(a)(2) (emphasis added). The guidelines define “prior
sentence” as “any sentence previously imposed upon adjudication of guilt . . . for
conduct not part of the instant offense.” Id. § 4A1.2(a)(1) (emphasis added).
No. 09-1802 United States v. Woodard Page 3
Consistent with these guidelines provisions, this court held in an unpublished
opinion that “[i]f a criminal act was part of the . . . same course of conduct . . . as the
offense[] of conviction, then, as a matter of law, it was an impermissible ground upon
which to base a criminal history departure.” United States v. Washburn, No. 94-6292,
1995 WL 351331, at *2 (6th Cir. June 9, 1995) (per curiam) (third alteration in original)
(internal quotation marks and citation omitted). This rationale accords with the manner
in which this court calculates the baseline criminal history category before considering
a departure—excluding from consideration conduct that formed part of the instant
offense. See United States v. Tilford, 85 F. App’x 516, 518–20 (6th Cir. 2004)
(determining whether criminal history was properly calculated based on whether aiding
and abetting was part of instant offense or a prior sentence); United States v. Hicks,
4 F.3d 1358, 1362–63 (6th Cir. 1993) (finding state cocaine conviction properly included
in criminal history calculation because it was a prior offense unrelated to the present
charge). None of this, of course, constrains a district court’s broader authority to
consider various factors under § 3553(a). See United States v. Tristan-Madrigal, 601
F.3d 629, 635 (6th Cir. 2010); United States v. Herrera-Zuniga, 571 F.3d 568, 589 (6th
Cir. 2009).
Woodard’s argument fails under plain-error review, however, because he cannot
show an impact on his substantial rights. “A sentencing error affects a defendant’s
substantial rights when there is a reasonable probability that, but for the error, [he] would
have received a more favorable sentence.” United States v. Wilson, 614 F.3d 219,
223–24 (6th Cir. 2010). No such probability exists here. Besides the two challenged
factors, the district court relied on numerous other justifications for its upward departure:
His criminal history offenses include larceny, drugs, violence,
he’s violated probation on numerous occasions, many, many traffic
violations, 19 misdemeanors in ten years. He’s never spent more than 30
days in jail by his own . . . admission. Then we have all of these reports
of domestic violence, and the recitation in paragraph 84 [of the PSR
regarding anger-related issues] which just goes on and on and on and
includes his participation in a confrontation that ended up with someone
being killed. There’s report of his driving his car into another vehicle on
No. 09-1802 United States v. Woodard Page 4
a couple of occasions, intimidating witnesses or intimidating people who
would complain about his conduct.
Cf. Washburn, 1995 WL 351331, at *2 (reversing Section 4A1.3 departure where, absent
the impermissible factor, no reasoned explanation supported departure). Given the
district court’s lack of “any doubt . . . of the significant potential possibility, likelihood
that [Woodard] will reoffend,” and statement that a “[c]riminal [h]istory [c]ategory [III]
seriously under represent[ed] the seriousness of Mr. Woodard’s criminal history” (a fact
that even Woodard’s counsel conceded), no reasonable likelihood exists that, absent the
allegedly impermissible factors, the court would have found that a criminal history of
category III adequately captured Woodard’s past. The court’s upward variance to 180
months further removes any uncertainty that consideration of these factors affected
Woodard’s substantial rights. See United States v. Williams, No. 08-6409, 2010 WL
3724594, at *7 (6th Cir. Sept. 13, 2010) (finding “no plausible argument” that district
court would have awarded lower sentence where district court “varied upward
substantially from the higher Guidelines range . . . , clearly evincing the court’s belief
that even the higher Guidelines range was an insufficient sentence after considering the
§ 3553(a) factors” (emphasis omitted)).
B.
Woodard next contends that the district court improperly issued a two-category
criminal history upward departure without adequately explaining why a one-category
departure would not suffice. We again review for plain error. See Blackie, 548 F.3d at
398–99. After explaining why it rejected a criminal history category of III, the district
court then did not say why it passed over category IV before settling on category V.
Yet, even if we assume this to be error, Woodard again cannot show it had any effect on
his substantial rights. Raising Woodard’s criminal history one category would only have
increased his guidelines range to 84–105 months—no increase at all considering the 120-
month mandatory minimum. Pegging his criminal history at category V still subjected
Woodard to a guidelines range of only 120–125 months. In light of this circumstance,
together with the factors explained above—including the court’s ultimate upward
No. 09-1802 United States v. Woodard Page 5
variance and statement that category III seriously underrepresented Woodard’s criminal
history—Woodard again cannot show “a reasonable probability that, but for the error,
[he] would have received a more favorable sentence.” Wilson, 614 F.3d at 223–24.
C.
Finally, Woodard claims that the district court’s upward variance resulted in an
unreasonable sentence. We review the substantive reasonableness of the defendant’s
sentence for abuse of discretion. United States v. Houston, 529 F.3d 743, 755 (6th Cir.
2008). The defendant shoulders the burden of showing substantive unreasonableness.
See id. at 756. “The touchstone for our review is whether the length of the sentence is
reasonable in light of the § 3553(a) factors.” United States v. Tate, 516 F.3d 459, 469
(6th Cir. 2008).
Woodard faults the district court for according undue weight to his history and
characteristics and to the seriousness of his offense. With respect to his history and
characteristics, the district court wrongly placed him, he insists, in “the very top of the
category”:
The defendant has led a life of crime, petty and serious, for the last ten
years. He’s a 29-year-old man who lacks a high school diploma. He has
two children with two different women but he’s never been married.
There is evidence of drug abuse in his history and violence in his
criminal history. He has virtually no work history. And his mental and
physical health are not particularly good.
Woodard acknowledges that he “does have a history of trouble with the law,” but
disputes the seriousness of his past crimes and whether they involved violence.
Woodard’s presentence report tells a different story, as detailed by the district court at
sentencing. In addition to nineteen misdemeanors, Woodard’s criminal history includes
multiple drug- and theft-related convictions as well as an assault-and-battery conviction.
His records also list multiple episodes of domestic violence, two incidents of ramming
his vehicle into another vehicle, and threatening a neighbor in front of police. With
respect to the seriousness of the offense, the district court noted that the “very large
amount of marijuana being cultivated” placed Woodard’s case outside “the heartland.”
No. 09-1802 United States v. Woodard Page 6
Though Woodard argues that his offense level accounted for this drug quantity, the
district court barely mentioned this factor. The district court thus did not accord undue
weight to either Woodard’s history and characteristics or the seriousness of his offense.
See United States v. Webb, 616 F.3d 605, 611 (6th Cir. 2010).
The court, moreover, appears to have relied at least equally on two other
sentencing factors—the need to afford adequate deterrence and to protect the public from
the defendant’s further crimes. In discussing these factors, the court described Woodard
as “a ticking time bomb,” “a violent man,” “a dangerous guy,” and as someone who
lacked “any regard really for the law or much of anything except his own needs.” The
court also described the need to rehabilitate the defendant, which it characterized as
“perhaps the most important . . . factor of all because I think that a great deal of
remediation or rehabilitation is called for for this man.” In light of the district court’s
reasoned consideration of the § 3553(a) factors, we affirm Woodard’s sentence. See
United States v. Collington, 461 F.3d 805, 811 (6th Cir. 2006) (“When a district court
considers the relevant 3553(a) factors in-depth and reaches its determination that the
appropriate sentence varies outside the advisory guidelines range, we are very reluctant
to find the sentence unreasonable.”).
II.
For the above reasons, we affirm the judgment of the district court.