NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0686n.06
No. 08-5787
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Oct 15, 2009
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
BARRON WIMBLEY, ) EASTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: SUTTON, KETHLEDGE and WHITE, Circuit Judges.
SUTTON, Circuit Judge. Barron Wimbley pleaded guilty to two cocaine-distribution charges
and appeals his 262-month sentence. Because the district court properly categorized Wimbley as a
career offender and imposed a reasonable sentence, we affirm.
I.
In 2005, Wimbley sold crack cocaine to a government informant twice within one week.
ROA 17. A grand jury indicted Wimbley on four counts of distributing at least five grams of cocaine
base. See 21 U.S.C. §§ 841(a)(1), (b)(1)(B). He pleaded guilty to two of the counts, and the
government dropped the other two.
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The presentence report calculated Wimbley’s criminal history category (VI) and his offense
level (34) based on his status as a career offender, see U.S.S.G. § 4B1.1, yielding a guidelines range
of 262 to 327 months. Wimbley objected to the report, arguing that the court should use the 2005
guidelines instead of the 2007 guidelines to avoid an ex post facto violation. See U.S.S.G. § 1B1.11.
Under the 2005 guidelines, according to Wimbley, he did not qualify as a career offender because
three of his state offenses should be treated as a single offense.
Wimbley renewed this objection at the sentencing hearing. The court denied the objection
and sentenced Wimbley as a career offender, imposing a 262-month sentence for each count—to run
concurrently with each other and with a state-court sentence Wimbley already was serving. After
announcing the sentence, the court asked Wimbley’s counsel whether he was “aware of any reason
why the sentence should not be imposed as previously read and stated by the Court.” Sent. Hr’g Tr.
at 16. Wimbley’s counsel responded, “No, your Honor.” Id. at 17.
II.
A.
Sentencing courts normally apply the guidelines in effect at the time of sentencing unless
doing so “would violate the ex post facto clause,” in which case the court “shall use the Guidelines
Manual in effect on the date” the defendant committed the offense. U.S.S.G. § 1B1.11 (2007). The
district court violated this rule, Wimbley contends, by sentencing him under the 2007 guidelines in
effect at the time of sentencing rather than the guidelines in effect when Wimbley committed the
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offenses in September and October of 2005. The distinction makes a difference, Wimbley says,
because he would not have qualified for treatment as a career offender under the earlier guidelines.
(Wimbley refers to the earlier guidelines as the “2005” guidelines, but the 2004 guidelines were still
in effect in September and October of 2005.)
It is not clear whether one of the premises of Wimbley’s argument is correct, namely that the
court applied the 2007 guidelines, as opposed to the 2004 guidelines, when it rejected his contention
that his three state-court convictions should be counted as one for career offender purposes. But the
point makes no difference in the end. Wimbley is a career offender under the 2004 and 2007
guidelines, making any error in using the 2007 guidelines (if that is what the court did) harmless.
See Fed. R. Crim. P. 52(a); United States v. Charles, 138 F.3d 257, 268 (6th Cir. 1998).
Under the 2004 guidelines, Wimbley qualifies as a career offender based on three Tennessee
convictions for delivering .5 grams or more of a substance containing cocaine. See U.S.S.G.
§ 4B1.1; Tenn. Code Ann. § 39-17-417. The first offense occurred in December 2001, and the
second and third offenses occurred on separate days in June 2002. Wimbley says all three offenses
amount to one because they involved drug sales to the same undercover informant working in the
same undercover operation. The Tennessee authorities charged Wimbley with the first offense in
July 2002, and they charged the second and third offenses, through separate indictments, in March
2003—four months after Wimbley pleaded guilty to the first offense.
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In arguing that all three offenses should be treated as one, Wimbley misapprehends the
“common scheme or plan” component of the 2004 guidelines. Under the 2004 guidelines,
sentencing courts treat “prior sentences imposed” for offenses constituting a “common scheme or
plan” “as one sentence for purposes” of the career-offender enhancements. U.S.S.G. § 4A1.2(a)(2)
(2004) & cmt. 3. But this aggregation rule does not help Wimbley. To establish “a common scheme
or plan,” a defendant must show that “his crimes were jointly planned or the commission of one
entailed the commission of the other,” not that he stumbled into the same government undercover
operation (or, as Wimbley puts it, the same government “scheme or plan”) on multiple occasions.
United States v. Irons, 196 F.3d 634, 637 (6th Cir. 1999). Three separate drug sales on three
different days do not amount to “a common scheme or plan,” even if the State could have charged
the offenses together or consolidated them for trial or sentencing. See United States v. Carter, 283
F.3d 755, 757–58 (6th Cir. 2002).
Wimbley does no better under the 2007 guidelines. The 2007 guidelines do not count
multiple offenses as one if they were part of “a common scheme or plan”; multiple offenses count
as one only if they were indicted together or sentenced on the same day, neither of which occurred
here. U.S.S.G. § 4A1.2(a)(2) (2007). Because the district court properly treated Wimbley as a career
offender, whether under the 2004 or 2007 guidelines, no reversible error occurred.
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B.
Wimbley separately challenges his within-guidelines sentence as procedurally and
substantively unreasonable. He is wrong on both counts.
A district court imposes a procedurally unreasonable sentence by “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 v. United States, 552 U.S. __, 128 S. Ct.
586, 597 (2007). Because the district court asked for objections from Wimbley after announcing the
proposed sentence and Wimbley did not object, we review Wimbley’s procedural reasonableness
objections—all raised for the first time on appeal—for plain error. See United States v. Vonner, 516
F.3d 382, 385–86 (6th Cir. 2008) (en banc).
The district court did not violate these requirements, much less do so plainly. In explaining
its sentence, the court “considered the nature and circumstances of the offense, the history and
characteristics of [Wimbley] and the Advisory Guideline Range, as well as the other factors listed
in” 18 U.S.C. § 3553(a). Sent. Hr’g Tr. at 14. The court explained that the sentence rested on
Wimbley’s status as a career offender and his “extensive criminal history,” which continued even
after the State gave him “many opportunities” to straighten himself out short of incarceration
“through probation in Tennessee’s boot camp program.” Id. at 17. Indeed, the court noted, Wimbley
committed these federal drug offenses while on probation for the three prior state drug convictions.
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The district court also thought that Wimbley would benefit from the vocational training and
substance abuse treatment available in federal prison. The court also addressed, and rejected,
Wimbley’s only argument at sentencing—that he did not qualify as a career offender—by explaining
that Tennessee’s decision to charge his three drug offenses separately instead of in a single
indictment did not affect Wimbley’s career offender status under the guidelines.
Wimbley complains that the district court did not expressly address each of the § 3553(a)
factors, did not explain the weight it gave to each factor, improperly used the guidelines range as a
starting point and did not address Wimbley’s request for a variance. But: district courts need not
mechanically discuss every § 3553(a) factor at sentencing and Wimbley gave the court no reason to
do more than it did, see United States v. Williams, 436 F.3d 706, 708–09 (6th Cir. 2006); Wimbley
cites no case, and we are aware of none, for the novel proposition that a district court must pin down
how much “weight” it gives to each § 3553(a) factor; the Supreme Court has instructed district
courts to use the guidelines as a “starting point,” Gall, 128 S. Ct. at 596; and Wimbley never asked
the district court to vary from the guidelines, except perhaps based on his career-offender arguments
and the court adequately explained why that argument was unconvincing. The district court did not
plainly err.
Wimbley’s substantive challenge to the length of this bottom-of-the-guidelines sentence,
while not subject to plain error review, Vonner, 516 F.3d at 389, fares no better. As a within-
guidelines sentence, it receives a presumption of reasonableness on appeal, see Gall, 128 S. Ct. at
597; Vonner, 516 F.3d at 389, and Wimbley has not rebutted the presumption. He first points out
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that he can obtain the kind of vocational training and substance-abuse treatment the district court
recommended in far less than 262 months. True enough, but the district court imposed this sentence
not just to provide Wimbley with training and treatment but also to account for his recidivism and
“extensive criminal history.” The district court did not abuse its discretion in concluding that these
other explanations justified a within-guidelines sentence.
Wimbley adds that applying the career-offender enhancement to his guidelines sentence
creates an unwarranted—and substantively unreasonable—sentencing disparity. See 18 U.S.C.
§ 3553(a)(6). Wimbley received an enhancement, the argument goes, due to prosecutorial decisions
by Tennessee officials, not offense conduct, so similarly situated defendants could receive
significantly lower sentences. We disagree. As one of the baselines for reasonableness review and
relative uniformity in sentencing, see United States v. Kirchhof, 505 F.3d 409, 416 (6th Cir. 2007),
the guidelines are designed to avoid unwarranted disparities—which means that whatever else may
be wrong with a within-guidelines sentence, it is not likely to be an unwarranted disparity. Cf.
United States v. Shrake, 515 F.3d 743, 748 (7th Cir. 2008) (“it is pointless for a defendant whose
own sentence is within the Guidelines to raise” unwarranted-disparity arguments); United States v.
Vassar, No. 07-5299, 2009 WL 2959290, *11 (6th Cir. Sept. 16, 2009) (same). Wimbley never
explains why this is one of those rarest of circumstances: where the guidelines create not only an
unwarranted disparity but one that requires the district court to vary downward. See Kirchhof, 505
F.3d at 416.
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The district court, moreover, gave a reasoned explanation for its conclusion that a sentence
at the bottom of the guidelines would be “sufficient, but not greater than necessary” to achieve the
purposes underlying § 3553(a)(2). 18 U.S.C. § 3553(a). The district court did so after listening to
Wimbley’s arguments for leniency, and the district court clearly heard those arguments because it
accepted Wimbley’s request that his federal sentence run concurrent with his state sentences. Under
these circumstances, the district court did not abuse its discretion by declining to impose a sentence
below the guidelines range.
III.
For these reasons, we affirm.
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