NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0705n.06
No. 08-1494
FILED
UNITED STATES COURT OF APPEALS Oct 29, 2009
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF MICHIGAN
MICHELLE D. SMITH, )
)
Defendant-Appellant. )
__________________________________________ )
BEFORE: GILMAN and GRIFFIN, Circuit Judges, and STEEH, District Judge.*
GRIFFIN, Circuit Judge.
Defendant Michelle D. Smith appeals her 204-month prison sentence as procedurally and
substantively unreasonable after pleading guilty to conspiracy to distribute more than five grams of
cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 846. Smith argues that
the length of her sentence is greater than necessary to achieve the sentencing objectives set forth in
18 U.S.C. § 3553(a). We disagree and affirm.
I.
On December 12, 2007, Smith pled guilty to conspiracy to distribute more than five grams
of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 846. The parties agreed
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 08-1494
USA v. Smith
that the government could prove that Smith conspired to deliver 47.96 grams of cocaine base.
The presentence report (“PSR”) recommended sentencing Smith as a career offender under
U.S.S.G. § 4B1.1 because she was more than eighteen years of age at the time of her conviction, the
instant offense was a controlled substance offense, and her criminal history contained two prior state
felony convictions for controlled substance offenses.1 The PSR calculated Smith’s base offense level
at 34 because the statutory maximum term of imprisonment for violating 21 U.S.C. §
841(b)(1)(B)(iii) is forty years. U.S.S.G. § 4B1.1(b). According to § 4B1.1(b), the PSR assessed
her criminal history as a category VI. After affording Smith a three-level adjustment for acceptance
of responsibility, U.S.S.G. § 3E1.1(a)-(b), the PSR recommended a total offense level of 31,
producing an advisory Guidelines range of 188 to 235 months of imprisonment.
Smith’s probation officer also calculated her offense level under U.S.S.G. § 2D1.1, the
Guideline applicable to controlled substance offenses. The PSR recommended a base offense level
of 32 because her relevant conduct involved 2,073 kilograms of marijuana equivalent. Affording
a three-level adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a)-(b), the PSR
recommended a total offense level of 29 and a criminal history category of VI based on Smith’s 17
criminal history points. These calculations produced a Guidelines range of 151 to 188 months of
imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table). Pursuant to § 4B1.1(b), because the
offense level calculated under the career offender guideline was greater than the offense level
1
Smith was twice convicted, in 1991 and 1998, of unlawfully manufacturing or delivering
fifty grams or less of cocaine, a felony under Michigan law. See MICH . COMP. LAWS §
333.7401(2)(a)(iv).
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USA v. Smith
calculated under § 2D1.1, the probation officer recommended that the district court should sentence
Smith under the advisory Guidelines range set forth in § 4B1.1(b).
Smith raised two objections to the PSR that were resolved prior to her sentencing. It is
uncontested that Smith did not object to that portion of the PSR that calculated her offense level
under U.S.S.G. § 4B1.1. However, her sentencing memorandum presented the following categorical,
policy-based disagreement with § 4B1.1:
The advisory guideline range is 188 to 235 months. Due to her career offender
status, this range is significantly more than the sufficient sentence contemplated by
18 U.S.C. § 3553(a). This may be a case where, given the nature of those predicate
convictions to the career offender status (that is: the very nominal amounts of crack
involved in each of those cases) the Court should give thought before following the
career offender advisory guideline. The career offender guideline, like all the other
guidelines, is advisory not mandatory.
* * *
The question for policymakers is whether the career offender guideline, especially
as it applies to repeat drug traffickers, clearly promotes an important purpose of
sentencing. Unlike repeat violent offenders, whose incapacitation may protect the
public from additional crimes by the offender, criminologists and law enforcement
officials testifying before the Commission have noted that retail-level drug traffickers
are readily replaced by new drug sellers so long as the demand for a drug remains
high. Incapacitating a low-level drug seller prevents little, if any, drug selling; the
crime is simply committed by someone else. [quoting Fifteen Years of Guidelines
Sentencing, 134, available at http://www.ussc.gov/15_year/ ch. 4 pdf].
* * *
Such a disparity, in light of the Sentencing Commission’s findings of the impact of
the career offender guideline in cases not unlike that before the Court, and when
compared to the benefit to society intended but which is virtually non-existent,
should not be accepted or enforced by this Court. Whether it be deemed a downward
departure due to an overstated criminal history or a variance due to the impact of the
career offender designation on this defendant on these facts who has this particular
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No. 08-1494
USA v. Smith
criminal history, the fact of the matter is that the career offender advisory guideline
range significantly exceeds any reasonable determination of the sufficient sentence.
On April 10, 2008, the district court conducted Smith’s sentencing. Her counsel argued for
a lenient sentence, “rely[ing] on the sentencing memorandum that [he] filed previously . . . for the
Court’s consideration[.]” At the close of the hearing, the district court sentenced Smith to 204
months of imprisonment pursuant to the career offender guideline, § 4B1.1. After pronouncing
Smith’s sentence, the district court asked Smith’s counsel whether he had “any legal objection to the
sentence imposed[.]” Counsel responded “No.”
This appeal followed.
II.
We review the district court’s sentencing decisions for reasonableness under an
abuse-of-discretion standard. United States v. Bates, 552 F.3d 472, 476 (6th Cir. 2009) (quoting
Gall v. United States, 128 S. Ct. 586, 594 (2007)); United States v. Bolds, 511 F.3d 568, 578 (6th
Cir. 2007). Reasonableness review has both procedural and substantive components. United States
v. Sedore, 512 F.3d 819, 822 (6th Cir. 2008). We “must first ensure that the district court committed
no 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 . . . .” Gall, 128 S. Ct. at 597. If the sentence is procedurally sound, we “then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. We
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No. 08-1494
USA v. Smith
apply a presumption of substantive reasonableness to sentences that fall within the applicable
Guidelines range. Sedore, 512 F.3d at 823.
III.
A.
Smith first argues that her 204-month prison sentence is procedurally unreasonable because
the district court calculated her Guidelines range under U.S.S.G. § 4B1.1(b). She asserts that §
4B1.1 “is invalid and should not have served as a basis for Ms. Smith’s sentence.” She analogizes
the career offender guideline to the “flaw[ed]” crack cocaine guidelines and contends that § 4B1.1
“does not represent sound policy making.” In short, her argument presents a categorical, policy-
based disagreement with the career offender guideline as set forth in § 4B1.1.
The parties disagree regarding the standard of review that we should apply when analyzing
Smith’s policy-based claim – plain-error or abuse-of-discretion. To decide this question, we must
first address whether Smith preserved her claim for appeal.
According to United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), “[i]f a party does not
clearly articulate any objection and the grounds upon which the objection is based, when given [a]
final opportunity [to] speak, then that party will have forfeited its opportunity to make any objections
not previously raised and thus will face plain error review on appeal.” Id. at 872-73; see also United
States v. Vonner, 516 F.3d 382, 385-89 (6th Cir. 2008) (en banc) (applying Bostic’s forfeiture rule
to procedural-reasonableness claims). Smith concedes that her counsel responded “No” when the
district court asked him whether there were “any legal objections to the sentence imposed[,]” and
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No. 08-1494
USA v. Smith
that her counsel failed to object to that portion of the PSR that calculated her offense level under §
4B1.1.
Under United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009), “a policy-based
disagreement” with the Guidelines is “properly construed as a procedural challenge.” Id. at 583 n.8.
Thus, because Smith failed to object to the district court’s application of the career offender
guideline after pronouncing her sentence, we review the district court’s decision to apply § 4B1.1
for plain error.2 To establish plain error, a defendant:
must show (1) that an error occurred in the district court; (2) that the error was plain,
i.e., obvious or clear; (3) that the error affected [the] defendant’s substantial rights;
and (4) that this adverse impact seriously affected the fairness, integrity or public
reputation of the judicial proceedings.
United States v. Alexander, 543 F.3d 819, 822 (6th Cir. 2008) (quoting United States v. Koeberlein,
161 F.3d 946, 949 (6th Cir. 1998)).
Smith argues that the methodological flaws that allegedly run through the career offender
guideline invalidate that guideline entirely. Specifically, her disagreement with § 4B1.1 is based
upon an analogy to the “flawed” crack cocaine guidelines scrutinized in Kimbrough v. United States,
128 S. Ct. 558, 575 (2007), yet those guidelines remain valid, even after the Supreme Court decided
Kimbrough. See United States v. Mikowski, No. 08-1791, 2009 WL 1546375, at *5 (6th Cir. June 3,
2009) (unpublished); United States v. Branch, 537 F.3d 582, 594-95 (6th Cir. 2008). Put simply,
2
Smith conceded during oral argument, and we agree, that the district court understood its
authority to vary or depart from the advisory Guidelines if it accepted Smith’s policy-based
disagreement with § 4B1.1. Thus, the limited exception to Vonner’s forfeiture rule created in
Herrera-Zuniga does not apply to the present case. See Herrera-Zuniga, 571 F.3d at 579-80.
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USA v. Smith
a sentencing court is not required to vary or disagree with the crack cocaine guidelines post-
Kimbrough. A within-Guidelines sentence for a crack cocaine offense post-Kimbrough may still
survive a reasonableness inquiry. The career offender guideline, as applied in Smith’s case, is no
different. Moreover, while we recently held that a sentencing court may impose a sentence below
the career offender guideline based on a policy disagreement with that guideline (as with the crack
cocaine guidelines), see United States v. Michael, 576 F.3d 323, 327 (6th Cir. 2009), it is certainly
not required to do so. Thus, Smith’s policy-based disagreement, as she presents it, would require
us to facially invalidate § 4B1.1.
It is not our station to wholly invalidate the career offender guideline. Because the district
court was not required to reject the advisory Guidelines range recommended under § 4B1.1, Smith
cannot demonstrate error, let alone plain error.
B.
Upon concluding that the sentencing decision is procedurally sound, we “then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Alexander, 543 F.3d at 822 (citation omitted). District courts are charged with imposing “a sentence
sufficient, but not greater than necessary, to comply with the purposes” of sentencing set forth in 18
U.S.C. § 3553(a). We apply a rebuttable presumption of reasonableness for sentences within the
Guidelines range. Sedore, 512 F.3d at 823.
Smith claims that the district court “exaggerated” her criminal history score during the
sentencing hearing. She bases her argument on the following statement by the district court:
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No. 08-1494
USA v. Smith
So that I find this then has an adjusted offense level of 31 and a criminal history level
of VI, being for purposes of calculation 17 criminal history points, considerably
above the range here of a criminal history level of VI.
This argument lacks merit. A review of the advisory Guidelines Sentencing Table confirms
the accuracy of the district court’s statement regarding Smith’s criminal history. See U.S.S.G. ch.
5, pt. A (Sentencing Table).
A defendant’s criminal history category is determined by the number of criminal history
points calculated in the PSR and confirmed by the district court. Smith’s criminal history points
totaled 17, a score that contained four more points than necessary to constitute a category VI.
Criminal history categories (with the exception of category I) are based upon a range of three
criminal history points. Because Smith’s criminal history score was 17, her criminal history
contained four more points than necessary to qualify as category VI, the highest category, which
requires a minimum of 13 points. Thus, her criminal history score of 17 exceeded the presumptive
three point range reflected in categories II - V and was “considerably above the range [] of a criminal
history level of VI.” We conclude that the district court did not unreasonably “exaggerate” her
criminal history. In fact, its statement was accurate.
Finally, Smith claims that her sentence is substantively unreasonable because her “co-
defendants” received more lenient sentences. Again, this argument lacks merit. There were no co-
defendants in Smith’s case. The two women arrested with Smith were prosecuted in the state courts.
Thus, she cannot meritoriously claim that there is an unwarranted sentencing disparity under 18
U.S.C. § 3553(a)(6) because her argument ignores the existence and operation of two independent
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sentencing systems. We recently rejected an argument that a federal sentence was unreasonable
because it “provided for a lengthier period of imprisonment than did applicable state sentencing
principles.” Cowherd v. Million, 260 F. App’x 781, 786 (6th Cir. 2008) (unpublished) (citing United
States v. Malone, 503 F.3d 481, 485-86 (6th Cir. 2007)). Instead, the Malone court joined our sister
circuits in holding that district courts need only consider unwarranted disparities in sentences
imposed upon federal defendants and “not those that may exist between federal and state court”
sentences. Malone, 503 F.3d at 486; see also Cowherd, 260 F. App’x at 786. “Because of the
parallel, non-intersecting nature of the state and federal criminal justice systems and sentencing
frameworks,” Smith’s argument must fail. Cowherd, 260 F. App’x at 786. Smith has therefore not
rebutted the presumption that her within-Guidelines sentence is substantively reasonable.
IV.
For these reasons, we affirm the judgment of the district court.
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