United States v. Cole

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0596n.06

No. 07-5563

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
UNITED STATES OF AMERICA, ) Aug 21, 2009
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) On Appeal from the United
) States District Court for the
DEMETRIUS KEON COLE, ) Western District of Tennessee
)
Defendant-Appellant. ) OPINION
)
)
)

Before: CLAY and ROGERS, Circuit Judges; and JORDAN, District Judge.*

CLAY, Circuit Judge. Defendant Demetrius K. Cole (“Cole”) appeals the 140-month

sentence imposed by the United States District Court for the Western District of Tennessee. Subject

to a plea agreement, Cole pleaded guilty to possession of a controlled substance (crack cocaine) with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g). Based on Cole’s prior criminal history, the Presentence

Investigation Report (“PSIR”) determined that he was a “career offender” subject to the sentencing

enhancement prescribed in U.S.S.G. § 4B1.1. After granting the government’s motion for a

downward departure based on Cole’s cooperation with the police, the district court determined that

*
The Honorable R. Leon Jordan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
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United States v. Cole

the sentencing range recommended under the Sentencing Guidelines as to the distribution charge was

140 to 175 months imprisonment. The district court imposed a sentence of 140 months on the

distribution count and 120 months on the felon-in-possession count, with the two sentences to run

concurrently. On appeal, Cole challenges the procedural reasonableness of his sentence.

For the reasons set forth below, we hereby AFFIRM Cole’s sentence.

I.

On January 23, 2007, Cole pleaded guilty, pursuant to a plea agreement, to possession of a

controlled substance and being a felon in possession of a firearm. Based on two prior qualifying

drug felony convictions—possession of cocaine with intent to distribute and sale of marijuana—the

probation officer determined that Cole was subject to the career-offender provision of the Guidelines

which prescribed a base offense level of 34.1 After subtracting three levels for Cole’s acceptance

of responsibility, the probation officer calculated Cole’s adjusted total offense level to be 31.

Prior to sentencing, the government moved the district court to depart downward under

U.S.S.G. § 5K1.1 based on Cole’s assisting the police in the investigation of other crimes and

individuals. The district court granted the government’s motion and departed downward three levels,

yielding a final offense level of 28. The resulting sentencing range was 140 to 175 months. Subject

to the plea agreement, the government recommended to the court that Cole be sentenced at the low

end of the advisory Guidelines range.

1
A defendant is subject to the career offender provisions if (1) he or she is at least 18 years
old at the time the offense of conviction was committed, (2) the offense of conviction is a felony that
is either a crime of violence or a controlled substance offense, and (3) he or she has at least two such
prior felony convictions. U.S.S.G. § 4B1.1(a).

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United States v. Cole

Cole did not object to the PSIR calculations or either of the government’s motions. Cole also

did not file a sentencing memorandum. At his sentencing hearing, defense counsel conceded that

Cole previously had been convicted of two qualifying drug felonies, but argued that the nature of his

marijuana conviction militated against application of the career-offender provision. Cole did not

argue that the district court should reject the 100-to-1 crack-to-powder cocaine sentencing ratio

prescribed under U.S.S.G. § 2D1.1(c)(5).

On April 25, 2007, the district court sentenced Cole to 140 months on the distribution count

and 120 months on the felon-in-possession count, with the two sentences to run concurrently.

On appeal, Cole challenges the procedural reasonableness of his sentence. Initially, Cole’s

appellate counsel moved this Court to withdraw from the case, filing a brief in accordance with

Anders v. California, 386 U.S. 738 (1967). This Court denied defense counsel’s motion, and ordered

the parties to file supplemental briefs addressing the applicability of the Supreme Court’s decision

in United States v. Kimbrough, 552 U.S. 85, 128 S. Ct. 558 (2007).

II.

“Post-Booker, we review a district court’s sentencing determination, ‘under a deferential

abuse-of-discretion standard,’ for reasonableness.” United States v. Bolds, 511 F.3d 568, 578 (6th

Cir. 2007) (quoting Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 591 (2007)); see also Rita v.

United States, 551 U.S. 338, 347-50 (2007); United States v. Webb, 403 F.3d 373, 383 (6th Cir.

2005). In determining whether a defendant’s sentence is “reasonable,” this Court must examine the

procedural and substantive aspects of the sentencing court’s decision. United States v. Jones, 445

F.3d 865, 869 (6th Cir. 2006). Therefore, in addition to determining whether a sentence is

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substantively unreasonable because the length of the sentence is “greater than necessary” to achieve

the sentencing goals set forth in 18 U.S.C. § 3553(a), we also must consider whether the district

court committed “significant procedural error,” such as:

failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence-including an explanation for any deviation from the Guidelines
range.

Gall, 128 S. Ct. at 597.

Unlike claims relating to the substantive aspects of the sentence, a defendant must preserve

procedural challenges for appeal. United States v. Vonner, 516 F.3d 382, 385-86 (2008) (en banc).

Where a defendant fails to properly preserve an issue for appeal, that claim is subject to review for

plain error. Id.; Fed. R. Crim P. 52(b). The plain-error standard, however, applies only where the

relevant party was given “an opportunity” to object. Fed. R. Crim. P. 51(b) (“If a party does not have

an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that

party.”).

In determining the requisite standard of review, the parties are in agreement that plain-error

review applies. We disagree. There is no doubt that Cole did not raise any objection to the 100-to-1

crack-to-powder sentencing ratio prescribed by the Sentencing Guidelines. Ordinarily, then, this

Court would review that claim for plain error. In this case, however, plain-error review does not

apply because the district court failed to ask the requisite Bostic question.

The plain-error standard applies only where the relevant party was given “an opportunity”

to object. Fed. R. Crim. P. 51(b) (“If a party does not have an opportunity to object to a ruling or

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order, the absence of an objection does not later prejudice that party.”). Given the vagaries of the

opportunity-to-object inquiry, this Court often “wrestled with the difficulty of ‘parsing a [sentencing]

transcript to determine whether . . . a party had a meaningful opportunity to object’ and of

determining whether plain-error review should apply.” Vonner, 516 F.3d at 385 (quoting United

States v. Bostic, 371 F.3d 865, 873 n.6 (6th Cir. 2004)). “In an effort to bring some clarity to the

matter and to ensure that plain-error review applied only when the parties fairly were given a chance

to object to the sentencing procedure,” Vonner, 516 F.3d at 385, this Court adopted a new procedural

rule requiring district courts, after announcing a proposed sentence, to “ask the parties whether they

have any objections to the sentence . . . that have not previously been raised,” Bostic, 371 F.3d at

872. Where the sentencing judge asks this question but a party fails to raise any objections not

previously raised, the claim is forfeited and plain-error review applies on appeal. Vonner, 516 F.3d

at 385-86.

Although Cole did not raise any objections regarding the procedural aspects of his sentence,

his procedural claims are not subject to review for plain error because the district court failed to

comply with the procedural requirements set down in Bostic. Rather than asking the question

required under Bostic, the district court asked only: “Anything else, Ms. Smothers?” This is

insufficient to satisfy Bostic. This court has “made clear that ‘[a] district court can satisfy the

requirements of the Bostic rule only by clearly asking for objections to the sentence that have not

been previously raised.’” United States v. Thomas, 498 F.3d 336, 340 (6th Cir. 2007) (quoting

United States v. Clark, 469 F.3d 568, 570 (6th Cir. 2006)). Where, as here, the district court fails

to ask this question, a defendant’s “failure to raise any of his arguments as objections below does

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United States v. Cole

not trigger plain-error review.” United States v. Gapinski, 561 F.3d 467, 473-74 (2009). In both

Gapinski and Thomas, this Court held that plain-error review did not apply because the district court

failed to ask the specific question required under Bostic. See Gapinski, 561 F.3d at 473 (concluding

that the Bostic rule was not satisfied when the district court asked, “Anything else for the record, Ms.

Lasker?”); Thomas, 498 F.3d at 340 (concluding that the Bostic rule was not satisfied when the

district court asked, “Do you have anything further for the record, Mr. Canady?”).

In addition, with respect to the applicability of the career-offender enhancement, it is

irrelevant whether the district court posed the requisite Bostic question because defense counsel

repeatedly and unambiguously raised this issue during the sentencing hearing. Cole’s arguments

during sentencing are sufficient to satisfy Vonner and preserve the issue for appeal. See United

States v. Blackie, 548 F.3d 395, 398 (6th Cir. 2008) (holding that Vonner does not require

application of plain-error standard even where a defendant failed to object after sentencing so long

as the defendant raised the substantive basis for the argument during sentencing and thus

“preserv[ed] it for appeal”).

III.

A.2

In Kimbrough, the Supreme Court held that the district court did not abuse its discretion by

rejecting the 100-to-1 crack-to-powder sentencing ratio then-mandated under the Guidelines. 128

S. Ct. at 575. Recently, in Spears v. United States, ___U.S. ___, 129 S Ct. 840 (2009) the Supreme

2
Judges Rogers and Jordan do not join Part. III.A of this opinion.

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Court clarified its holding in Kimbrough, explaining that district courts possess the “authority to vary

from the crack cocaine Guidelines based on policy disagreement with them, and not simply based

on an individualized determination that they yield an excessive sentence in a particular case.” Id.

at 843. Expounding on this point, the Court emphasized that a district court’s authority to

categorically reject the crack cocaine Guidelines applies even in “a mine-run case where there are

no ‘particular circumstances’ that would otherwise justify a variance from the Guidelines’ sentencing

range.” Id. at 844.

Following Spears, this Court has struggled to find a consistent approach to determining

whether a district court failed to recognize its authority to reject the advisory Guidelines on policy

grounds. For instance, in United States v. [Kenneth James] Johnson, 553 F.3d 990 (6th Cir. 2009),

we vacated a defendant’s sentence in light of Spears on the ground that, “on the record before us,

we have no way of ascertaining whether the district judge would have imposed the same sentence

if he had known of his discretion to vary categorically from the crack-cocaine Guidelines based on

a policy disagreement.” Id. at 996 n.1. We also ordered a remand under Spears in United States v.

Vandewege, 561 F.3d 608 (6th Cir. 2009), concluding that the district court “did not recognize” its

authority to depart on policy grounds. Id. at 609 (observing that the district court stated “I do

believe that policy judgments of whether crack and powder are equivalent or not is not for me to

make.”). Our decision in Vandewege expressly noted that this type of “misunderstanding” provides

“additional grounds to remand the case for resentencing.” Id.

More recently, however, two unpublished decisions have suggested that remand under Spears

is not necessary unless the district court makes “express statements” at the sentencing hearing

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indicating that it felt bound to apply the crack cocaine Guidelines. United States v. Porter, No.

07-5714, 2009 U.S. App. LEXIS 3603, at *11 (6th Cir. Feb. 24, 2009) (explaining that appellate

courts cannot “merely assume” that the district court “lacked ‘full awareness of this authority’”

(quoting Johnson, 553 F.3d at 996)); United States v. [Michael] Johnson, No. 06-6545, 2009 U.S.

App. LEXIS 1872, at *21 (6th Cir. Jan. 30, 2009) (vacating the defendant’s sentence on the grounds

that the sentencing transcript made “clear” that the district court’s “belief that it was without

authority to depart or vary from the guidelines on this basis” and because of the court’s “express

reliance on the Eighth Circuit’s [now-reversed decision in Spears]”).

Our most recent pronouncement on this subject came in United States v. Guest, 564 F.3d 777

(6th Cir. 2009), where we held that “there should be some indication of error in the record justifying

remand,” id. at 779, and emphasized that remand is not warranted “based on mere conjecture that

the district court may have felt constrained by appellate review.” Id. at 781.

Because Porter and [Michael] Johnson are unpublished decisions, this panel is not bound

by those pronouncements. Guest and [Kenneth James] Johnson, on the other hand, are reported

decisions by which we must abide. See 6 Cir. R. 206(c) (“Reported panel opinions are binding on

subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel.”);

Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court

cannot overrule the decision of another panel. The prior decision remains controlling authority unless

an inconsistent decision of the United States Supreme Court requires modification of the decision

or this Court sitting en banc overrules the prior decision.” (citations omitted)). Under Guest and

[Kenneth James] Johnson, remand is required either where there is “some indication of error in the

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record” or where “we have no way of ascertaining whether the district judge would have imposed

the same sentence” if he had understood the full scope of his authority to reject the Guidelines on

policy grounds.3

The other circuits that have addressed this issue have adopted a similar standard, holding that

remand is appropriate where the Court of Appeals “cannot discern from the record whether the

district court would have imposed a lesser sentence had it known that it was free to disagree with the

100-to-1 ratio.” United States v. Harper, 281 F. App’x 608, 612-13 (7th Cir. 2008) (observing that

“[t]he sentencing transcript admits both possibilities”); accord United States v. Taylor, 520 F.3d 746,

747 (7th Cir. 2008) (“Even before Kimbrough, a sentencing judge could if he wanted rail against the

100-to-1 ratio, but that would have been spitting against the wind, since we had held that the ratio

was not to be questioned by sentencing judges. Thus the fact that a judge—the judge in this case for

example—does not say anything about the ratio cannot be taken to mean that he (in this case she)

thinks it is fine.”); United States v. McGowan, 276 F. App’x 946, 949 (11th Cir. 2008) (“We cannot

presume that the district court, anticipating Kimbrough, understood that it would not have abused

its discretion if it had reduced [the defendant’s] sentence because it viewed the crack/powder

disparity to be unfair.”); United States v. Regalado, 518 F.3d 143, 147 (2nd Cir. 2008) (“Since the

district court was, quite understandably, unaware of (or at least insecure as to) its discretion to

3
To the extent that there is any tension between the standard articulated in Guest and the
standard set forth in [Kenneth James] Johnson, we are bound to apply the earlier rule set down in
[Kenneth James] Johnson. See Sowards v. Loudon County, Tenn., 203 F.3d 426, 431 n.1 (6th Cir.
2000).

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consider that the 100-to-1 ratio might result in a sentence greater than necessary, there was an

unacceptable likelihood of error.”); United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008)

(“In this case, the district court said nothing in either [defendant’s] sentencing hearing about the

disparity. It [thus] is unclear whether the district court declined to use its discretion in the requested

manner because of then-current Eighth Circuit precedent or because it did not find that the disparity

warranted any variance from the guidelines.” (citation omitted)). The test we applied in [Kenneth

James] Johnson thus appears to be consistent with the general consensus among the circuits that

remand is required where “it is impossible to know, ex post, whether the court would have exercised

its discretion to mitigate the sentencing range produced by the 100-to-1 disparity.”4 Regalado, 518

F.3d at 147.

B.

The government argues, however, that we should not consider Cole’s claim under Kimbrough

and Guest and [Kenneth James] Johnson because Cole was sentenced under the career-offender

Guideline, not the crack cocaine Guideline. The government is correct that Cole was sentenced

under the career-offender enhancement set forth in U.S.S.G. § 4B1.1(a), which moved the total

offense level to 34, and not the crack cocaine Guideline set forth in U.S.S.G. § 2D1.1(c)(5), which

4
But see United States v. Russell, 564 F.3d 200, 203 (3d Cir. 2009) (remanding because the
district court expressly stated that, under controlling Third Circuit precedent, it “may not
categorically reject the crack/powdered cocaine differential as a matter of policy”); United States v.
Boardman, 528 F.3d 86, 87 (1st Cir. 2008) (“[B]ecause [the district court] has broader freedom that
it did before Kimbrough and there is some explicit indication that it might well alter its sentence in
light of that, we think a remand is warranted to permit the court to make its own decision now
informed by Kimbrough.” (emphasis added))

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prescribed an offense level of 30. The government also is correct that a number of decisions from

other circuits support its position. See United States v. Harris, 536 F.3d 798, 813 (7th Cir. 2008)

(“We follow our sister circuits and clarify: a sentence entered under the career offender guideline,

§ 4B1.1, raises no Kimbrough problem because to the extent it treats crack cocaine differently from

powder cocaine, the disparity arises from a statute, not from the advisory guidelines.”); United States

v. Ogman, 535 F.3d 108, 109 (2d Cir. 2008) (clarifying that where “a district court sentences a

defendant pursuant to a Guidelines range that results from his status as a career offender, and without

reliance upon the Guidelines’ drug quantity table and the crack to powder ratio that it incorporates,

the sentence does not present the type of error for which remand in accordance [with] Regalado is

appropriate”); United States v. Jimenez, 512 F.3d 1, 8-9 (1st Cir. 2007) (“As we have explained, the

crack/powder dichotomy is irrelevant to the career offender sentence actually imposed in this case.

Consequently, the decision in Kimbrough – though doubtless important for some cases – is of only

academic interest here.”); see also United States v. McCorkle, 291 F. App’x 545, 546 n.1 (4th Cir.

2008) (“We find that Kimbrough is of no assistance to McCorkle because his ultimate guideline

range was not determined based on drug quantity but on his status as a career offender.”); United

States v. Grissom, 290 F. App’x 258, 260 (11th Cir. 2008) (“Further, his offense level was based on

his status as a career offender, which similarly does not distinguish between crack and powder

cocaine. Thus, the range suggested by the Guidelines – and adopted by the district court – was not

the result of the disparity discussed in Kimbrough.”). After reviewing those decisions and our own

case law on this issue, however, we conclude that our case law does not support the position

advocated by the government.

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Regardless of whatever other circuits have done in this respect, our case law makes clear that

the authority recognized in Kimbrough and Spears applies to all aspects of the Guidelines. See

United States v. Herrera-Zuniga, ___ F.3d ___, 2009 U.S. App. LEXIS 14941, at *33-40 (6th Cir.

2009). The government’s argument thus rests on a distinction without a difference. Because the

Guidelines are advisory, the district court has the authority to decline to follow the career-offender

enhancement. If the district court misunderstood its authority in this regard, that error—as well as

any resulting prejudice to the defendant—is no different than if the error had been committed in the

crack cocaine context, and thus would justify remand under Kimbrough and Spears. See Boardman,

528 F.3d at 87-88 (remanding under Kimbrough even though defendant was sentenced under

U.S.S.G. § 4B1.1).

The grounds on which the other circuits have refused to apply Kimbrough to the career-

offender Guidelines are utterly flawed. In Harris, for example, the Seventh Circuit reasoned that

Kimbrough does not apply to the career-offender enhancement prescribed in U.S.S.G. § 4B1.1

because that enhancement “arises from a statute.” 536 F.3d at 813 (“While the sentencing guidelines

may be only advisory for district judges, congressional legislation is not.”). In the same breath,

however, the Harris court confusingly cautions that “our discussion should not be read to suggest

that § 4B1.1 is any less advisory for a district judge than the other sentencing guidelines.”5 Id.

5
This tension is not limited to the Seventh Circuit’s decision in Harris. For example, the
First Circuit’s decision in Jimenez, 512 F.3d at 8-9 (reasoning that the “crack/powder dichotomy is
irrelevant to the career offender sentence actually imposed in this case,” and suggesting that “the
decision in Kimbrough – though doubtless important for some cases – is of only academic interest
here”), appears difficult to reconcile with that court’s subsequent holding in Boardman, 528 F.3d
at 87-88 (remanding career-offender case for resentencing so that the district court could “consider

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In addition to being internally contradictory, the rationale underlying the Seventh Circuit’s

holding in Harris also is mistaken. The sentencing enhancements prescribed under the career

offender Guideline are based on 28 U.S.C. § 994(h) which provides that “[t]he Commission shall

assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term

authorized” for certain “categories of defendants.” This mandate, however, does not alter the fact

that the sentencing range prescribed under the U.S.S.G. § 4B1.1 is advisory. Nor does it alter the

fact that the district courts possess the authority to decline to follow the recommended enhancement

for policy reasons. See Herrera-Zuniga, 2009 U.S. App. LEXIS 14941, at *37 (recognizing that “the

authority of district courts to reject the Guidelines on policy grounds follows inexorably from the

Court’s holding in Booker that the Guidelines are advisory only”). In other words, the career

offender Guideline does not “arise from a statute” in any unique way that would preclude that aspect

of the Guidelines from the reach of Booker and Kimbrough and Spears.

For that reason, we decline the government’s suggestion that Kimbrough and Spears do not

apply here.

IV.

After reviewing the sentencing transcript, we conclude that there is not a sufficient

“indication of error in the record” to justify remand with regard to the application of the crack

cocaine Guideline, and certainly no “clear” or “express” statement that the district court felt

precluded from disagreeing with then-applicable 100-to-1 sentencing ratio embodied in U.S.S.G. §

such issues with the additional latitude furnished by Kimbrough.”).

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2D1.1(c)(5) or that it believed that the career-offender enhancement did not apply. Nor do we lack

the ability to “ascertain[] whether the district judge would have imposed the same sentence.” On the

contrary, the sentencing transcript indicates that the district court agreed that “the probation officer

has correctly calculated the guidelines” and that crack cocaine offenses warrant harsher sentences.

In pronouncing sentence, the district court made clear that it viewed crack cocaine as “a very

serious problem” that “causes all kinds of heartache in our community.” The district court also

commented that it “want[ed] to send a message to other crack dealers that if you get caught dealing

crack the penalties for that are severe.” In fact, the sentencing transcript indicates that the only

reason that the district court agreed to sentence Cole at the low end of the advisory Guidelines range

was that Cole had offered substantial assistance to the government in at least four other ongoing

investigations, and issue obviously having nothing at all to do with the district court’s policy opinion

regarding the severity of the crack cocaine Guidelines. As the court explained: “However, based

on the fact that you have tried to do the right thing since your arrest in this case, [and] the fact that

[the] government has recommended the minimum sentence within your guideline range, that’s going

to be the sentence I impose.”

On this record, we find no basis to conclude that the district court failed to recognize its

authority to deviate from the Guidelines.

CONCLUSION

For the foregoing reasons, we hereby AFFIRM the sentence imposed by the district court.

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