NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0876n.06
Filed: December 5, 2006
No. 05-6542
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF TENNESSEE
)
Kenneth Dale Sanders, ) OPINION
)
Defendant-Appellant. )
BEFORE: GIBBONS, MCKEAGUE, Circuit Judges; and BUNNING, District Judge.*
McKeague, Circuit Judge. Defendant-Appellant Kenneth Dale Sanders pleaded guilty to
conspiring to manufacture methamphetamine and to possession of a firearm in relation to drug
trafficking and was sentenced to a term of imprisonment of 262 months on the manufacturing
conviction and a consecutive term of imprisonment of 60 months on the possession of a firearm in
relation to drug trafficking conviction. Sanders appealed, arguing that the district court erred in (1)
finding that “maximum term authorized” for career offenders meant life imprisonment in his case;
(2) improperly weighing 28 U.S.C. § 994 in its analysis under 18 U.S.C. § 3553(a) in resentencing
him; (3) unreasonably sentencing him in light of the factors set forth in 18 U.S.C. § 3553(a); and (4)
resentencing him to the identical sentence he received pre-Booker because “Apprendi, Blakely and
*
The Honorable David L. Bunning, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 05-6542
U.S. v. Sanders
Booker mandate that the court not accept any enhancements not determined by a jury in violation
of the Defendant’s constitutional Sixth Amendment Right to a jury trial.” For the reasons provided
below, we AFFIRM the orders of the district court.
I. BACKGROUND
On November 14, 2002, agents of the Tennessee Highway Patrol Criminal Investigation
Division arrived at the residence of Darren Rankin in Grundy County, Tennessee, having
received information of a “chop shop” at the location. United States v. Sanders, 125 F. App’x
685, 686 (6th Cir. 2005) (per curiam). The agents saw Kenneth Dale Sanders at the scene, and
they witnessed him attempting to conceal something in his pants as they approached him. Id.
Agents performed a pat down on Sanders, at which time they found he was wearing a shoulder
holster with a loaded Browning 9 mm semi-automatic firearm; a subsequent search revealed
approximately one ounce of methamphetamine. Id. Other items found at the scene, on which
Sanders’ residence was located, included items normally used in the manufacture of
methamphetamine as well as a formula for the drug’s manufacture. Id. Sanders was advised of
his rights, and he agreed to waive them and to make a statement. Id. In that statement, Sanders
told agents that he had been manufacturing methamphetamine for at least two years and that he
occasionally did so with other individuals, sometimes obtaining the chemicals he needed to
complete the manufacture by exchanging for those materials some of the methamphetamine he
manufactured. Id.
On December 10, 2002, a grand jury in the Eastern District of Tennessee returned a six-
count indictment against Sanders. Id. On February 6, 2003, Sanders pleaded guilty to Count 1,
-2-
No. 05-6542
U.S. v. Sanders
conspiring to manufacture in excess of fifty grams of methamphetamine in violation of 21 U.S.C.
§§ 841(b)(1)(B) and 846, and Count 5, possession of a firearm in furtherance of a drug offense in
violation of 18 U.S.C. § 924(c). Id.
The probation officer prepared a presentence report (“PSR”). The PSR assigned Sanders
a base-offense level of twenty. The officer suggested a three-level enhancement under Section
2D1.1(b)(5)(B) of the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”)1
because Sanders’ production of methamphetamine with others present “created a substantial risk
of harm to these individuals due to the toxic vapors and risk of explosion.” JA at 120. The
officer suggested a three-level reduction under U.S.S.G. § 3E1.1(a)-(b) for acceptance of
responsibility. Sanders has two prior felony drug convictions, in 1997 and 1998; accordingly, the
probation officer further suggested that Sanders’ offense level be enhanced to thirty-seven under
the career offender provision of U.S.S.G. § 4B1.1. Following this enhancement, Sanders was
credited with a three-level downward departure under U.S.S.G. § 3E1.1(a)-(b) due to his
acceptance of responsibility, and the resulting adjusted offense level recommended by the officer
equaled thirty-four.
Sanders’ prior convictions qualified him for a total of five criminal history points, with
two additional points added under U.S.S.G. § 4A1.1(d) because he was on parole at the time of
the instant offense and one additional point added under U.S.S.G. § 4A1.1(e) because the instant
offense was committed less than two years after his release from custody for his 1998 conviction.
1
The district court used the 2002 version of the Guidelines manual.
-3-
No. 05-6542
U.S. v. Sanders
Accordingly, he had eight total criminal history points, which would have resulted in a criminal
history category of IV, but for his classification as a career offender, which mandates a criminal
history category of VI. The resulting Guidelines sentencing range for Count 1 equaled 262 to
327 months. The statutory minimum consecutive sentence on the Count 5 conviction under 18
U.S.C. § 924(c) is 60 months. Accordingly, the effective Guideline range was 322 to 387
months. The statutory minimum sentence on the Count 1 conviction under 21 U.S.C. §
841(b)(1)(B) is ten years. The maximum term for both Counts 1 and 5 is life imprisonment.
The PSR was given to the parties on April 17, 2003. At the first sentencing hearing,
Sanders filed one objection and two motions for downward departure. He objected to the three-
level enhancement for substantial risk of harm, but the district court declined to resolve the
objection because it did not affect the Guideline range due to Sanders’ career offender status. In
Sanders’ motions for downward departure, he argued that his career offender status overstated
the seriousness of his prior convictions and that he had an extraordinary medical condition,
namely skin cancer. The district court denied both motions.
The district court sentenced Sanders to 262 months for Count 1 and a consecutive
sentence of 60 months for Count 5. Sanders, 125 F. App’x at 685. Sanders moved to withdraw
his guilty plea, the district court denied the motion, and Sanders appealed. Id. at 687. This court
affirmed Sanders’ convictions for Counts 1 and 5, and remanded for resentencing in light of
United States v. Booker, 543 U.S. 220 (2005). Id.
On remand, Sanders argued that the sentencing factors of 18 U.S.C. § 3553(a) warranted
a sentence below the applicable Guideline range. Specifically, he argued that the combined
-4-
No. 05-6542
U.S. v. Sanders
mandatory minimum sentence for both counts of fifteen years was sufficient to achieve the
sentencing goals, namely to provide just punishment, afford adequate deterrence, promote respect
for the law, and protect the public from future crimes; accordingly, his counsel argued, “[a] 27-
year sentence is not going not going to do anything more to Kenneth Sanders to address these
concerns than a 15-year sentence.” JA at 104-05. The district court noted, however, that Sanders
failed to address 28 U.S.C. § 994(h), which directs the Sentencing Commission to assure that the
Guidelines specify “a sentence to a term of imprisonment at or near the maximum term
authorized” for repeat offenders like Sanders. Such a term would be life in Sanders’ case. JA at
106-07. The United States argued that Sanders’ prior convictions warranted a term of
imprisonment within the Guideline range applicable to career offenders. The district court
reimposed the earlier sentence of 322 months, a sentence at the low end of the Guideline range.
Judge Collier explained his reasoning as follows:
I don’t want you to believe that judges are people without hearts. I feel for you as
a human being. But when we become judges, we take an oath to enforce the law.
And in this case the law is clear that the Congress of the United States, the body
that has the authority to make the laws–and we all have an obligation to obey
them, including judges–indicates that people who commit crimes such as you
have committed, with your background, should receive a sentence at or near the
maximum possible. In this case the maximum possible sentence is a term of life
imprisonment. The Court believes that in passing this statute the Congress has
stated that it believes that such sentences provide just punishment, such sentences
act as an adequate deterrence, and such sentences promote respect for the law.
Now, I don’t believe that judges in an ordinary case are permitted to
question the wisdom of Congress. Taking into account the factors stated in
Section 3553(a), along with that statement in 28 U.S.C. Section 994, the Court
believes that the earlier sentence the Court imposed is appropriate in this case.
The Court believes that sentence adequately complies with the directions from
Congress, even though it is not the maximum in this case. And some might even
-5-
No. 05-6542
U.S. v. Sanders
argue it’s not near the maximum punishment. Therefore the Court will reimpose
the earlier sentence for the reasons stated today as well as the reasons stated at the
initial sentencing hearing, with the exception that any comments the Court made
about the guidelines being mandatory obviously would not stand at this point.
JA at 111-12. Sanders filed a timely appeal.
II. ANALYSIS
A. The 28 U.S.C. § 994(h) “maximum term authorized” for Sanders
Section 994(h) of Title 28 of the United States Code provides that
The [United States Sentencing] Commission shall assure that the guidelines
specify a sentence to a term of imprisonment at or near the maximum term
authorized for categories of defendants in which the defendant is eighteen years
old or older and
(1) has been convicted of a felony that is--
(A) a crime of violence; or
(B) an offense described in section 401 of the Controlled Substances
Act (21 U.S.C. § 841) . . . ; and
(2) has previously been convicted of two or more prior [such] felonies . . . .
28 U.S.C. § 994(h). To the extent that Sanders admits that he has prior convictions of two drug-
related felonies when he was 38 and 39 years of age and these convictions were in violation of
the Controlled Substances Act (“CSA”), the elements of 28 U.S.C. § 994(h)(2) are not in dispute.
Additionally, his conviction in the instant case, as stated above, was also a violation of the CSA,
satisfying § 994(h)(1).
Sanders claims, rather, that the district court erred by finding that the phrase “maximum
term authorized” for career offenders pursuant to § 994 means life imprisonment.2 He argues
2
Whether the district court improperly weighed § 994(h) in sentencing Sanders is another
issue that Sanders raises on appeal, and it is addressed later. Here, he argues that the district court
improperly interpreted § 994(h).
-6-
No. 05-6542
U.S. v. Sanders
that “maximum term authorized” should be interpreted as the maximum pursuant to the
Guidelines, which would be 387 months, as the Guideline range was 322 to 387 months, rather
than the statutory maximum, which is life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(B)
and 18 U.S.C. § 924(c). Sanders offers little support for his argument. He references Apprendi
v. New Jersey, 530 U.S. 46 (2000), and United States v. LaBonte, 520 U.S. 751 (1997), but seems
to admit that they do not support his argument; rather, he concludes “even if a prior conviction
enhances a Defendant’s sentence, the Defendant submits that the Court should look at the
guideline range as the Defendant’s ‘statutory maximum’ rather than at ‘life’ per the statute.”
(Appellant’s Br. 17). He essentially argues the Guidelines “warrant the same consideration for
career offenders as any other class of offenders,” claiming that career offenders may be
“mistreat[ed]” otherwise. Id.
Sanders asserts that because this issue is an issue of law, the standard of review is de
novo; he is, of course, correct in asserting that issues of law are reviewed by this court under a de
novo standard. Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir. 1996). However, the
United States points out that because Sanders failed to raise this issue at the district court level,
the standard of review is plain error. The United States is correct in its assertion that this court
applies a plain error standard of review when a defendant fails to raise a claim during sentencing
proceedings. United States v. Swanberg, 370 F.3d 622, 627 (6th Cir. 2004); United States v.
Koeberlin, 161 F.3d 946, 949 (6th Cir. 1998). The lower court did not analyze this issue, as it
was not raised at either sentencing hearing.
-7-
No. 05-6542
U.S. v. Sanders
Irrespective of the standard of review employed, Sanders’ argument fails. Indeed, the
Supreme Court has already rejected the argument that Sanders attempts to employ. In LaBonte,
the Court confronted the question of the meaning of the phrase “maximum term authorized” in §
994(h). The Court reasoned that “term authorized” refers to the period of incarceration permitted
by the applicable sentencing statutes, not to the period specified by the Guidelines. LaBonte, 520
U.S. at 758. Accordingly, the phrase “maximum term authorized” requires the greatest sentence
that is statutorily allowed. Id. The Court thus held that “the phrase ‘at or near the maximum
term authorized’ is unambiguous and requires a court to sentence a career offender ‘at or near’
the ‘maximum’ prison term available once all relevant statutory sentencing enhancements are
taken into account.” Id. at 762.
LaBonte speaks directly to the issue Sanders raises, and the Court’s recent criminal
procedure cases, Apprendi, Blakely, and Booker do not alter the holding in LaBonte. Indeed, the
Court held in Apprendi that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. Blakely clarified Apprendi,
holding that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Blakely v. Washington, 542 U.S. 296, 303 (2004) (emphasis in original) (citations
omitted).
Applying that precedent to the facts of the instant case, neither Apprendi nor Blakely
helps Sanders by signaling a departure from the holding in LaBonte. Indeed, the facts that
-8-
No. 05-6542
U.S. v. Sanders
increased the penalty for Sanders were his prior convictions, which the Apprendi Court
specifically excepted from its rule. Furthermore, Sanders admitted those prior convictions and
his age at the time of those offenses on the record at his sentencing hearing, a fact that also
defeats his argument in light of the holding in Blakely.
Booker does even less to help Sanders regarding his appeal on this issue. Indeed, Booker
declared invalid the statute making the application of the Guidelines mandatory. United States v.
Booker, 543 U.S. 220, 245 (2005). Accordingly, the district court is free to choose a sentence
above the Guideline range, which is now advisory. Hence, the top of the Guideline range cannot
be the maximum sentence authorized for purposes of § 994(h), as Sanders implores this court to
declare.
Because Apprendi, Blakely, and Booker offer no reason to depart from the holding of
LaBonte, the latter case dictates that this court reject Sanders’ argument. Indeed, this conclusion
is not only supported from the standpoint of a logical analysis of Supreme Court jurisprudence,
but it is also supported by this court’s application of that jurisprudence. United States v. Coffee,
434 F.3d 887, 898 (6th Cir. 2006) (“Booker did not eliminate judicial factfinding. Instead, the
remedial majority gave district courts the option, after calculating the Guideline range, to
sentence a defendant outside the resulting Guideline range.”); United States v. Phillips, 143 F.
App’x 667, 671-72 (6th Cir. 2005) (“Because the district court’s decision to depart upward was
based on Mr. Phillips’ prior convictions, it did not violate [the constitutional rule of Apprendi,
-9-
No. 05-6542
U.S. v. Sanders
Blakely, and Booker].”). Accordingly, there is no basis for Sanders’ first argument on appeal.
Moreover, it is unclear how Sanders’ argument could help him, practically speaking, even
if he is correct that “maximum term authorized” should be interpreted as the maximum pursuant
to the Guidelines, which would be 387 months in his case, rather than the statutory maximum,
which is life imprisonment in his case. Sanders was sentenced by the district court to a term of
322 months. This sentence was at the low end of the applicable Guideline range, not “at or near”
the statutory maximum or the top of the Guideline range. Thus, it is unclear how Sanders’
argument helps him even if this court were to accept it.
B. The reasonableness of Sanders’ sentence
Sanders next claims that “career offenders should receive the same treatment as other
class offenders” and that he was not afforded the same treatment because the trial court
“improperly weighed 28 U.S.C. § 994,” and “interpreted . . . § 994 as Congress’ intent to
sentence career offenders, generally, to the maximum term they would be facing.” (Appellant’s
Br. 18). Continuing this argument, he asserts that under the trial court’s reasoning, a career
offender will “automatically” be sentenced at or near the maximum term of imprisonment
without considering the other § 3553(a) factors. Id.
Sanders also generally argues that his sentence was unreasonable in light of the § 3553(a)
factors. He claims that the district court “placed a tremendous amount of emphasis” on
subsections (a)(4) and (a)(2)(A). (Appellant’s Br. 21). He additionally rehashes his argument
that the district court “placed a tremendous amount of emphasis on [§ 994(h)].” (Appellant’s Br.
- 10 -
No. 05-6542
U.S. v. Sanders
22). He concludes by arguing that his “relatively minor criminal history” does not justify career
offender status and that a fifteen year sentence would accomplish the goals of § 3553(a).
(Appellant’s Br. 22-25).
In Booker, the Supreme Court declared invalid the statute making the Sentencing
Guidelines mandatory. 543 U.S. at 245. However, it left the Guidelines scheme intact for use by
the district courts as a guide for sentencing. Id. at 266-67. Accordingly, section 3553(a) requires
district courts to consider the following factors in fashioning a defendant’s sentence:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant;
(2) the need for the sentence imposed –
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for –
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines . . .;
- 11 -
No. 05-6542
U.S. v. Sanders
(5) any pertinent policy statement . . .;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a). Post-Booker, a district court must impose “‘a sentence sufficient, but not
greater than necessary to comply with the purposes’ of § 3553(a)(2).” United States v. Cage, 458
F.3d 537, 540 (6th Cir. 2006) (quoting United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir.
2006)).
Sanders here challenges the district court’s sentencing decision, both in general and by
raising the aforesaid assignments of error. Such decisions are reviewed for reasonableness.
Booker, 543 U.S. at 261-62; United States v. Davis, 397 F.3d 340, 346 (6th Cir. 2005). Sixth
Circuit precedent has indicated what constitutes a review for reasonableness, specifically noting
that a sentence is unreasonable when the court fails to consider the applicable guidelines range
and the factors in 18 U.S.C. § 3553(a). United States v. Williams, 432 F.3d 621, 622-23 (6th Cir.
2005) (“Booker requires an acknowledgment of the defendant’s applicable Guidelines range as
well as a discussion of the reasonableness of a variation from that range. . . . A mere list of
characteristics of the defendant considered at sentencing by the district court . . . is insufficient.”)
(citing United States v. Jackson, 408 F.3d 302, 304 (6th Cir. 2005)); United States v. Webb, 403
F.3d 373, 383 (6th Cir. 2005). The district court must articulate the reasons for the particular
sentence imposed in order to enable this court to engage in a meaningful reasonableness review
of the sentence. Jackson, 408 F.3d at 305. Further, this circuit has held that a reasonableness
- 12 -
No. 05-6542
U.S. v. Sanders
review contains both substantive and procedural components. United States v. McBride, 434 F.3d
470, 475 n.3 (6th Cir. 2006) (citations omitted). Accordingly, this court must take into account
the length of the sentence as well as “the factors evaluated and the procedures employed by the
district court in reaching its sentencing determination.” United States v. Jones, 445 F.3d 865, 869
(6th Cir. 2006), cert. denied, 75 U.S.L.W. 3172 (U.S. Oct. 2, 2006) (No. 06-5395) (quoting
Webb, 403 F.3d at 383).
Important for purposes of appeal, this court has held that sentences that are properly
calculated under the Guidelines are credited with a rebuttable presumption of reasonableness.
United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). However, the sentencing court still
must explain its reasons for imposing a particular sentence “sufficiently to permit reasonable
appellate review.” United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006).
We first address Sanders’ particularized assignments of error and then address his general
claim that the sentence imposed by the district court was unreasonable. With regards to the
former, he complains (1) that “career offenders should receive the same treatment as other class
offenders,” (2) that the district court improperly weighed 28 U.S.C. § 994(h), and (3) that under
the trial court’s reasoning, a career offender will “automatically” be sentenced at or near the
maximum term of imprisonment without considering the other § 3553(a) factors. (Appellant’s
Br. 18).
First, as stated previously, the Supreme Court has held that career offenders are not to be
treated the same as non-career offenders, per § 994(h). Indeed, in LaBonte, the Court held that §
994(h) unambiguously “requires a court to sentence a career offender ‘at or near’ the ‘maximum’
- 13 -
No. 05-6542
U.S. v. Sanders
prison term available once all relevant statutory sentencing enhancements are taken into
account,” and that although Congress has delegated broad discretion to the Sentencing
Commission in formulating the Guidelines, that discretion “must bow to the specific directives of
Congress.” LaBonte, 520 U.S. at 757, 762. Hence, this court must deny Sanders’ first claim
because Congress specifically directed the Sentencing Commission to not treat career offenders
like Sanders in the same manner as other offenders.
Second, there is no reversible error in the district court’s consideration of § 994(h).
While it is true that section is a directive to the Sentencing Commission rather than district
courts, the Supreme Court has held that the phrase “maximum term authorized” in § 994(h)
requires a court to sentence career offenders to the maximum prison term available “once all
relevant statutory sentencing enhancements are taken into account.” LaBonte, 520 U.S. at 762.
Consistent with that holding, section 3553(a)(3), which this court must consider in sentencing a
criminal defendant, Williams, 432 F.3d at 622-23, requires a court to consider “the kinds of
sentences available.” 18 U.S.C. § 3553(a). Furthermore, even if Sanders were correct, it is
unclear to this court how he has been harmed by the district court’s consideration of § 994(h).
As stated above, § 994(h) dictated a life sentence, yet the district court still sentenced Sanders to
the very bottom of the Guideline range.
Third, there is no merit to Sanders’ claim that if a trial court considers § 994(h) in its §
3553(a) analysis, career offenders will automatically be sentenced at or near the maximum term
of imprisonment without regard for the § 3553(a) factors. Indeed, his case is an example of just
the opposite: § 994(h) indicated a term of life imprisonment was appropriate, yet the district
- 14 -
No. 05-6542
U.S. v. Sanders
court judge sentenced him to 322 months, which was the low end of the Guideline range.
Accordingly, Sanders’ attack in this instance must fail.
Nor is there any merit to Sanders’ general claim that his sentence is unreasonable.
Indeed, his arguments fail to show the unreasonableness of his sentence under this court’s
precedent. Sanders does not argue that the district court improperly calculated his sentence under
the Guidelines; accordingly, he must rebut the presumption that his sentence is reasonable.
Williams, 436 F.3d at 708. Sanders does not claim that the district court failed to consider the
applicable Guideline range because he was, in fact, sentenced to the bottom of the applicable
range. Nor does he argue that the district court failed to consider the factors in § 3553(a); to the
contrary, he admits that the court considered those factors in its analysis.
Nor did the district court merely recite a list of characteristics of the defendant. Rather,
the district court “articulate[d] the reasons for the particular sentence imposed”: notably, it (1)
acknowledged that the Guidelines are merely advisory; (2) took into account the Guideline range
of 322 to 387 months; and (3) noted that Sanders’ “criminal involvement with controlled
substances has escalated despite his convictions” and that Sanders’ two prior drug convictions
were within seven years, leading to its conclusion that Sanders’ criminal history category did not
significantly overrepresent the seriousness of his criminal history or the likelihood that he would
commit further crimes. JA at 87-89, 101-02, 106-08. Thus, the district court followed this
court’s direction that it must explain its reasons for imposing a certain sentence sufficiently to
permit reasonable appellate review. Richardson, 437 F.3d at 554.
- 15 -
No. 05-6542
U.S. v. Sanders
Sanders attempts to bolster his argument that his sentence was unreasonable by citing to
United States v. Washington, an unpublished decision by this court. Nos. 00-3389, 00-3392,
2001 WL 1301744, at *1 (6th Cir. Aug. 8, 2001) (unpublished). In Washington, this court
affirmed the district court’s decision that the criminal history category of Washington, the
defendant, significantly overrepresented the seriousness of his criminal history, and hence that he
should not be sentenced pursuant to the career offender provision. Id. at *5-*6. Washington had
been convicted of trafficking cocaine in 1992, possession of cocaine in 1993, and trafficking
cocaine in 1995; in the case at the bar, he pleaded guilty to possession with intent to distribute
cocaine and cocaine base. Id. at *1, *5. This court, confined by the then-mandatory Guidelines,
held that the district court had not abused its discretion in departing downward from the
applicable sentencing guideline. Id. at *4.
Washington is easily distinguished from the instant case. In that case, the district court
had already departed downward from the applicable guideline; thus, this court reviewed the
district court’s decision under an abuse of discretion standard. Id. at *4. An abuse of discretion
exists only when the reviewing court is firmly convinced that a mistake has been made. Ross v.
Duggan, 402 F.3d 575, 575 (6th Cir. 2004). To find an abuse of discretion, a court must have a
definite and firm conviction that the district court committed a clear error in judgment. Bell v.
Johnson, 404 F.3d 997, 1003 (6th Cir. 2005). Accordingly, Washington does not stand for the
proposition that a criminal defendant’s career offender status overrepresents his criminal history
anytime his prior drug offenses involves small amounts of drugs, as Sanders would have this
court believe. Rather, the deferential standard of review employed drove this court’s decision.
- 16 -
No. 05-6542
U.S. v. Sanders
Washington, 2001 WL 1301744 at *5 (“[T]his court concludes that the district court did not
abuse its discretion by electing not to sentence Defendant as a ‘career offender’ . . . .”) (emphasis
added). Indeed, this court mandated that the holding in Washington is “[c]onfined to the unique
circumstances of this case,” thus expressly warning against the generalization that Sanders
implores the court to employ in the instant case. Id.
United States v. Smith is a case from this court that is more on point and that
demonstrates Sanders’ interpretation of Washington is misplaced. 105 F. App’x 711 (6th Cir.
2004). First, this court in Smith dictated that Sanders’ argument will not prevail even if this court
finds that his criminal history category significantly overrepresents his prior crimes. Id. at 714
(“Washington does not require a district court always to depart downward . . . even where the
court finds that a criminal history category significantly overrepresents a defendant’s prior
crimes.”) (emphasis added).
Second, Smith is directly on point with the instant case. In Smith, the PSR recommended
career offender status for Smith, and he filed a motion for a downward departure, arguing that his
prior criminal convictions involved relatively small quantities of drugs and that his criminal
history category overstated his prior criminal conduct; hence, analogizing to Washington. Id. at
712. The district court denied the motion, and this court affirmed, holding that “[b]ased on
Smith’s likely recidivism, the district court properly exercised its discretion to deny the motion
for a downward departure.” Id. at 714. The facts in Smith parallel the instant case: career
offender status was recommended for Sanders, he claimed that his “relatively minor criminal
history” does not justify career offender status because of the minor penalties given, he
- 17 -
No. 05-6542
U.S. v. Sanders
analogized to Washington, and the district court’s decision was based on Sanders’ recidivism, as
the court noted that Sanders “has a consistent criminal history” and that his “criminal
involvement with controlled substances has escalated despite his convictions.” JA at 87.
Accordingly, Smith applies and Washington fails to support Sanders’ claim that his sentence is
unreasonable.
In short, Sanders makes no argument that furthers his position in accordance with this
court’s reasonableness sentencing jurisprudence, either in terms of cases that are factually similar
or in terms of legal standards that he must satisfy. Furthermore, Sanders has little about which to
complain regarding the reasonableness of his sentence; indeed, it is worth repeating that his
sentence was 322 months, which was at the low end of the Guideline range, even though §
994(h) dictated a life sentence.
C. Sanders’ remaining arguments
Finally, Sanders makes two arguments that warrant little discussion. First, he asks this
court to “adopt a new rule of law which extends Apprendi . . . and Blakely . . . to the facts of a
prior conviction.” This argument is a direct affront to Apprendi, a decision by the Supreme
Court that this court has no authority to overturn. Indeed the Supreme Court in Apprendi held
that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added). The Court recently and
explicitly reaffirmed this rule. Booker, 543 U.S. at 244. Therefore, to the extent that Sanders
asks this court to “extend” Apprendi in a manner that expressly contravenes an exception that the
- 18 -
No. 05-6542
U.S. v. Sanders
Supreme Court has consistently carved out, his argument is meritless. Sanders cites no authority
in support of such an audacious proposition.
Alternatively, Sanders asks this court to adopt a new rule that would require trial courts
“to advise defendants if they are in fact career offenders prior to allowing defendants to change
their plea to guilty.” (Appellant’s Br. 28). Sanders essentially claims that trial courts should be
made to advise defendants as to what their prior convictions are and what effect those
convictions will have on their sentences. This proposition fails for several reasons. First,
Sanders provides no support from any other jurisdiction that has adopted a similar rule. Second,
as a matter of course, the defendant himself should know what his prior convictions are. Sanders
gives no reason why trial courts must bear the burden of informing a criminal defendant of his
criminal history, information that one would believe is important enough for a defendant to keep
himself apprised of, either through memory or written records. Similarly, Sanders provides no
reason why trial courts, rather than a defendant’s attorney, should bear the burden of advising the
defendant what effect his prior convictions will have on his sentence. While it is true that a lay
person may be unable to understand the nuances of the Sentencing Guidelines, there is no reason
that a licensed attorney should not be able to provide such advice upon learning the defendant’s
criminal history. This is simply a burden that this court will not impose on trial courts.
III. CONCLUSION
For the foregoing reasons, the panel AFFIRMS the orders of the district court.
- 19 -