NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0435n.06
No. 14-5966 FILED
Jun 11, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
LOUIS ANGELO MARS, SR., ) KENTUCKY
)
Defendant-Appellant. )
)
*
BEFORE: GRIFFIN and DONALD, Circuit Judges; TARNOW, District Judge.
PER CURIAM. Louis Angelo Mars, Sr. (“Mars”), a federal prisoner, appeals the
sentence the district court imposed after he pleaded guilty to a charge of conspiring to distribute
oxycodone.
Mars submitted a sentencing memorandum to the district court objecting to the
calculation of his criminal history score in the presentence report, asking the court to consider his
troubled upbringing, employment history, and family support, and seeking application of a
contemplated amendment to the United States Sentencing Guidelines that had not yet been
enacted. At the sentencing hearing, counsel for Mars repeated each of these arguments. The
district court sustained the objection to the criminal history calculation and calculated a lowered
Guidelines imprisonment range of 87 to 108 months. The district court also acknowledged
*
The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 14-5966
United States v. Mars
reading the sentencing memorandum and agreed that Mars had had a difficult childhood.
However, the court emphasized the serious nature of Mars’s offense and his previous convictions
involving violence and weapons in determining to impose a within-Guidelines sentence of 96
months. Finally, the court declined to apply the impending amendment to the sentencing
Guidelines, but invited Mars to move for a sentence reduction if the Guidelines were amended.
On appeal, Mars argues that the district court failed to explain why it rejected his
arguments for leniency, rendering his sentence procedurally and substantively unreasonable.
Mars also points out that retroactive Amendment 782 to USSG § 2D1.1(c) lowers his offense
level from 30 to 28, yielding a Guidelines range of 70 to 87 months of imprisonment.
Accordingly, he seeks a remand to allow the district court to consider his eligibility for a
sentence reduction. The Government argues that Mars’s sentence is reasonable, but agrees that
remand to the district court for consideration of whether Mars is eligible for sentence reduction
under Amendment 782 is proper.
We review sentences “for reasonableness, which, we have determined, has both
procedural and substantive components.” United States v. Davis, 751 F.3d 769, 773 (6th Cir.
2014). Because Mars did not object below to the procedural error he now raises, we review the
procedural reasonableness of his sentence for plain error. Id. Mars argues that, in United States
v. Wallace, 597 F.3d 794, 804 (6th Cir. 2010), we found plain error in a district court’s failure to
address a defendant’s argument. That case is distinguishable from the one at bar because the
sentencing court there failed to mention any of the relevant sentencing factors. Here, in contrast,
the district court acknowledged the arguments for leniency that Mars raised, but found that the
serious nature of the offense and his violent criminal history outweighed his leniency arguments.
Therefore, Mars has not established that the district court committed plain error.
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No. 14-5966
United States v. Mars
Mars also argues that his sentence is substantively unreasonable. We review the
substantive reasonableness of a sentence under an abuse-of-discretion standard. United States v.
Shaw, 707 F.3d 666, 674 (6th Cir. 2013). The court of appeals may, but is not required to,
presume that a within-Guidelines sentence is reasonable. Rita v. United States, 551 U.S. 338,
347 (2007). If an appellate court does presume the reasonableness of a within-Guidelines
sentence, that presumption does not place the burden of persuasion or proof on any particular
party. Id. (clarifying, inter alia, United States v. Brown, 579 F.3d 672 (6th Cir. 2009), which
implies that the burden is on the defendant to show that a different sentence is required in order
to rebut any presumption of reasonableness of a within-Guidelines sentence).
Defendant argues that a sentence of less than 96 months would have been sufficient to
achieve the sentencing goals set forth in 18 U.S.C. § 3553(a). The fact that a district court does
not give a defendant the specific sentence he sought does not create a cognizable basis for
appeal, especially if the district court followed the mandates of section 3553(a) during
sentencing. United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006). The transcript of the
sentencing hearing indicates that the district judge was concerned with the interests of deterrence
and just punishment when it imposed Mars’s sentence. While we might agree that a shorter
sentence could serve those interests, it is for the district court to determine, in its sound
discretion, what sentence is “sufficient, but not greater than necessary” to meet these interests.
18 U.S.C. § 3553(a). Mars further argues that the district court did not properly account for the
mitigating circumstances in his case. After reviewing the district court record, we cannot say
that the sentence imposed was an unreasonable sentence, regardless of whether it is the sentence
that we might select ourselves.
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No. 14-5966
United States v. Mars
When an amendment to the Guidelines applies retroactively, “the proper procedure is for
this court to affirm the sentence but to remand for consideration of whether the prisoner is
entitled to a sentence reduction under [18 U.S.C.] § 3582(c).” United States v. Poole, 538 F.3d
644, 646 (6th Cir. 2008). The parties agree that this matter should be remanded to the district
court for consideration of whether Mars is eligible for a sentence reduction under Amendment
782 to the sentencing Guidelines. Accordingly, we affirm the district court’s judgment but
remand for consideration of the availability of a sentence reduction in light of Amendment 782.
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