NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0341n.06
Filed: June 17, 2008
No. 06-6457
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JAMES R. COPE, ) EASTERN DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
)
Before: GIBBONS and SUTTON, Circuit Judges; and ACKERMAN, District Judge.*
PER CURIAM. James Cope challenges the reasonableness of his 188-month prison
sentence, which the district court issued after a Booker remand and which mirrors the sentence the
district court originally imposed. We affirm.
I.
A jury found Cope guilty of attempting to manufacture and possessing with intent to
distribute methamphetamine, see 21 U.S.C. §§ 846, 841(a)(1), possessing pseudoephedrine and other
products used to manufacture methamphetamine, see id. §§ 841(c)(2), 843(a)(6), and being a felon
*
The Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.
No. 06-6457
United States v. Cope
in possession of a firearm, see 18 U.S.C. § 922(g). Cope’s guidelines range was 151–188 months,
and the district court sentenced him at the top of the range.
We affirmed Cope’s convictions on appeal but vacated his sentence based on United States
v. Booker, 543 U.S. 220 (2005). See United States v. Marshall, 192 F. App’x 504, 512, 515 (6th Cir.
Aug. 22, 2006). On remand, the district court recognized the advisory nature of the guidelines but
still rejected Cope’s request for a below-guidelines sentence. It then gave Cope the same 188-month
sentence it had originally imposed.
II.
In challenging the reasonableness of his sentence, Cope does not take issue with any
procedural component of the sentence—the district court’s calculation of the guidelines sentence,
its appreciation of the advisory nature of the guidelines or any other process-driven aspect of the
sentence or sentencing hearing. He instead targets the “substantive reasonableness” of his sentence,
Gall v. United States, 128 S. Ct. 586, 597 (2007), claiming it should have been shorter.
We apply abuse-of-discretion review to challenges to the length of a sentence. See id. at
594. And when the national views of the Sentencing Commission and the independent views of a
district court judge align—as they do when the judge agrees that a guidelines sentence is
appropriate—we grant this “double determination” a presumption of reasonableness. United States
v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc); see also Rita v. United States, 127 S. Ct.
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No. 06-6457
United States v. Cope
2456, 2463 (2007). Cope has not rebutted the presumption here, much less shown that the district
court otherwise abused its discretion in imposing this sentence.
The district court had ample bases for concluding that a 188-month sentence satisfied the
factors listed in 18 U.S.C. § 3553(a). Cope had “a significant criminal history,” including two prior
felony drug convictions, and had been “involved in the illegal drug trade for a significant period of
time.” JA 68; see 18 U.S.C. § 3553(a)(1), (a)(2)(C). The court reasonably found it “even more
disturbing” that Cope’s criminal conduct involved both marijuana and methamphetamine, JA 68,
noting that methamphetamine offenses are particularly “serious,” JA 70; see 18 U.S.C.
§ 3553(a)(2)(A). Under these circumstances, the court reasonably determined that a “sentence either
at the top or above the particular guideline range is necessary in order to deter others from engaging
in such conduct,” JA 70; see 18 U.S.C. § 3553(a)(2)(B), and reasonably determined that a within-
guidelines sentence of 188 months was “sufficient but not greater than necessary to serve the
statutory purposes,” JA 71; see 18 U.S.C. § 3553(a).
In resisting this conclusion, Cope argues that two considerations mandate a below-guidelines
sentence: (1) his prior military service in Vietnam and accompanying post-traumatic stress disorder;
and (2) his acceptance of responsibility. As to the first point, the court observed that, “even
individuals with [this] disorder[] have to take responsibility for their actions,” JA 68, a stance that
no guideline or precedent prevents a trial court from taking and a stance supported by the seriousness
of these offenses. To the extent Cope also means to argue that he was entitled to a departure from
the guidelines based upon his post-traumatic stress disorder, see U.S.S.G. § 5K2.13, we may not
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No. 06-6457
United States v. Cope
review a district court’s determination on this score when, as here, the district court appreciated its
discretion to grant the departure, see United States v. Puckett, 422 F.3d 340, 344–45 (6th Cir. 2005);
see also United States v. McBride, 434 F.3d 470, 476 (6th Cir. 2006) (“Puckett . . . precludes our
review of that narrow determination of a denial of a Chapter 5 Guideline departure within the context
of the Guideline calculation.”).
As to the second point, it is far from clear that Cope even sought a lower sentence on the
ground that he accepted responsibility for his crimes. He points to no place in the transcript where
he made any such argument. The record, at all events, provides little support for such a contention.
Cope at most said only that he was “sort of guilty,” JA 64, and, even then, he made this statement
not so much to show his acceptance of responsibility but to attempt to reduce the relative culpability
of his co-defendant, see id. (“What I [did] wrong is undoable now. But making meth, I was never
guilty of making meth or nothing like that. But I was sort of guilty of some of these things. But the
girl behind m[y] back here, Tammy, if there’s any way you could give her any relief whatsoever,
she’s as innocent as heck of knowing anything about anything I had.”).
In view of the wide berth we give district courts in weighing the “competing” sentencing
considerations, see United States v. Grossman, 513 F.3d 592, 596 (6th Cir. 2008), Cope’s lengthy
criminal record and the presumption of reasonableness for a within-guidelines sentence, the court
did not abuse its discretion in imposing this sentence. On this record, “we simply cannot say that
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No. 06-6457
United States v. Cope
[Cope’s] special circumstances are special enough that, in light of § 3553(a), they require a sentence
lower than the sentence the Guidelines provide.” Rita, 127 S. Ct. at 2470 (emphasis added).
III.
For these reasons, we affirm.
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