NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0697n.06
Case No. 10-5006
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Sep 30, 2011
UNITED STATES OF AMERICA, ) LEONARD GREEN, Clerk
)
Plaintiff-Appellee, )
) On Appeal from the United States
v. ) District Court for the Eastern
) District of Tennessee
ANDRE DELANE ROSS, )
)
Defendant-Appellant. )
BEFORE: MOORE and COLE, Circuit Judges; BECKWITH, District Judge.*
BECKWITH, Senior District Judge. Appellant Andre Delane Ross appeals the sentence
imposed by the district court following his guilty plea to possession with intent to distribute at least
five grams of cocaine base, pursuant to 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Ross contends that
the 240-month sentence imposed upon him is substantively unreasonable. We reject his contentions
and affirm the district court.
I.
The facts giving rise to this appeal are largely undisputed. Ross was a passenger in a car that
was stopped by a Chattanooga police officer. When the officer attempted to search Ross, he ran, and
the officers saw him discard two “Baggies” that were later found to contain marijuana and cocaine
base, respectively. Ross continued to resist the officer’s attempts to restrain him, but he was
*
The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
eventually apprehended. He was later charged in a one-count indictment, and he agreed to plead
guilty without benefit of a plea agreement. The pre-sentence report concluded that Ross was a career
offender, based on two prior drug trafficking convictions. His criminal history score also placed him
in Criminal History Category VI, irrespective of his career offender status. The offense level for the
charged conduct combined with the career offender designation resulted in an advisory Guidelines
offense level of 34, and a Guidelines sentencing range of 262-327 months.
Prior to sentencing, Ross lodged objections to the pre-sentence report, and he also moved for
a downward departure on the basis of the powder/crack cocaine disparity. (R. 40, 41) His motion
specifically admitted that the pre-sentence report accurately calculated the advisory Guidelines
sentencing range, but urged the court to utilize a drug ratio which would reduce his Guidelines range
to 188-235 months. He also noted that with a 1:1 powder/crack ratio and without a career offender
designation, his sentencing range would be 92-115 months at offense level 23.
At the sentencing hearing on December 14, 2009, the district court reviewed Ross’s
objections to portions of the pre-sentence report, the second of which was formally withdrawn.
Neither of the objections affected the Guidelines calculations. The court confirmed Ross’s two prior
predicate convictions, noting defense counsel’s assertion that at the time of one of those convictions,
Ross did not understand that he was pleading guilty to a charge of possession of cocaine for resale.
Counsel also informed the court that the judgment of conviction was final and binding, and not
subject to dispute. After confirming the parties’ agreement to the pre-sentence report’s calculation
of the Guidelines range, the court heard from counsel about Ross’s objections to the power-crack
cocaine ratio and the interplay of that ratio with the career offender guideline. The Government
urged the court to sentence Ross within the original Guidelines range, but the district court granted
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Ross’s motion, expressly stating that its decision was based upon the Section 3553(a) factors. This
reduced the advisory sentencing range to 188 to 235 months. The court stated that it was not bound
by that range, and that the most compelling aspect of the case was Ross’s criminal history. (R. 47
at 19) After hearing arguments from counsel and Ross’s own statement expressing his desire for
leniency and another chance, the district court imposed a 240-month sentence.
Ross filed a timely notice of appeal. (R. 44) He argues in his brief that his sentence was
substantively unreasonable, because the district court placed too much emphasis on his criminal
history, and failed to specifically articulate the facts concerning that history upon which the court
relied.
II.
This Court reviews the reasonableness of a defendant’s sentence for abuse of discretion.
United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007), citing Gall v. United States, 552 U.S. 38,
46 (2007). Reasonableness review involves both procedural and substantive components.
Procedural unreasonableness encompasses 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. ... Substantive
unreasonableness focuses on the length and type of the sentence, ... and will be found
when the district court selects a sentence arbitrarily, bases the sentence on
impermissible factors, fails to consider relevant sentencing factors, or gives an
unreasonable amount of weight to any pertinent factor... . Our overlapping
description of procedural and substantive factors shows that the line between them
is blurry if not porous.
United States v. Camacho-Arellano, 614 F.3d 244, 246-47 (6th Cir. 2010) (internal citations and
quotations omitted; alteration in original). We accord due deference to the district court’s decision
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that a variance is justified by Section 3553(a) factors. United States v. Smith, 516 F.3d 473, 477 (6th
Cir. 2008) (internal citation omitted).
Ross raises only a claim of substantive reasonableness. He contends that it was substantively
unreasonable for the court to increase his sentence by five months based entirely on his criminal
history. The pre-sentence report did not conclude that his criminal history score underrepresented
the severity of his prior record, and Ross suggests that the court erred in giving improper weight to
that history. He also contends that it was error for the district court to rely on his arrest record,
arguing that the court made no factual findings that would permit the court to consider the arrests
in fashioning a sentence. We disagree.
In discussing Ross’s request to reduce the powder-crack ratio, the district court clearly stated
that “quite honestly in this case what is going to drive my sentencing decision is Mr. Ross’s criminal
history.” (R. 47 at 17) Ross was 29 years old at the time of sentencing. The pre-sentence report
states that Ross had prior convictions for two predicate felonies; six drug-related misdemeanors; two
assault misdemeanors (one of which included charges of evading arrest and false imprisonment of
his victim); and two other misdemeanor convictions. The report notes repeated incidents of Ross’s
probation being revoked with regard to many of these convictions, and he was on probation at the
time of the offense at issue. The pre-sentence report also listed 11 other adult arrests for various
crimes, including aggravated criminal trespass, resisting arrest, and an aggravated assault charge with
an allegation that Ross shot his victim. Given this background and record, the Government urged
the court to sentence Ross within the original career offender guidelines range of 262-327 months.
After granting Ross’s motion for a reduction based on the crack/powder disparity in the
career offender context, the court asked Ross to explain why a sentence in that lower range would
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serve the goals of the sentencing statute. The court noted that Ross’s conduct “over a long period
of time demonstrated a course of drug related and violent conduct that is shown to me at least on
paper a pretty, a pretty complete disrespect for the law, for the system, and for everything else.” (R.
47 at 20) The court also noted that despite the number of his prior convictions, Ross had served very
little time in jail. Ross’s counsel urged the court to disregard arrests and charges which had been
dismissed by the state, but the court quickly responded that it was entitled to consider both dismissed
and acquitted conduct in imposing a sentence. In that regard, the Government pointed out that the
crucial issue in considering a defendant’s history and characteristics pursuant to Section 3553(a)(1)
is an evaluation of the defendant’s conduct, and not whether that conduct may have resulted in
criminal charges that were actually prosecuted.
After considering all of these arguments, and listening to Ross’s own statement, the court
sentenced Ross to 20 years, explaining: “I believe that a sentence like that is necessary to reflect the
seriousness of the offense and promote some respect for the law which up to now you haven’t
demonstrated. I also feel that it’s necessary to have that sort of sentence to send a message of
deterrence to other young people who would be inclined to follow your path. And, quite honestly,
Mr. Ross, I feel it’s necessary to protect the public from you and people like you. I hate to say that,
but that’s what I think.” (Id. at 27) The court also recommended Ross for participation in the BOP’s
500-hour drug program because “narcotics has been at the root of a lot of your problems.” Id.
The district court did not err in considering Ross’s troublesome criminal history in fashioning
a sentence. Ross did not object to the pre-sentence report’s description of his prior convictions, save
for his counsel’s statement that Ross perhaps did not understand that he was pleading guilty to a
trafficking offense on one occasion. He made no objection to the description of his prior arrests and
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the incidents giving rise to those arrests. The pre-sentence report reveals a series of offenses
involving escalating levels of violence and drug quantities. Ross’s contentions of substantive error
are largely based on his subjective desire for a lower sentence and for greater leniency. As the
district court told Ross during the hearing, “You’ve had a dozen or more chances ... why should I
give you another chance when you’re standing here today having had so many chances that you
squandered?” (R. 47 at 25)
Moreover, the district court clearly articulated the statutory factors it relied on in fashioning
Ross’s sentence. In addition to Ross’s history and characteristics, they included the seriousness of
the offense; the need to promote respect for the law, and to provide just punishment to Ross (18
U.S.C. §3553(a)(2)(A)); the need to adequately deter future criminal conduct (Section
3553(a)(2)(B)); the need to protect the public from Ross’s further criminal conduct (Section
3553(a)(2)(C)); and the need to provide Ross with needed medical care and effective correctional
treatment (Section 3553(a)(2)(D)). The district court is not required to “engage in a ritualistic
incantation of the 3553(a) factors” when imposing a sentence; its order need only reflect the
statutory considerations and permit meaningful appellate review. United States v. Moon, 513 F.3d
527, 539 (6th Cir. 2008) (internal citation and quotations omitted). The district court satisfied these
standards, and we cannot conclude that the length of the sentence is substantively unreasonable. See
Camacho-Arellano, 614 F.3d at 247. We have also reviewed Appellant’s pro se supplemental brief,
filed with leave of the Court, and find that none of his arguments presented there would lead to a
different result.
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We therefore conclude that Ross’s sentence is not substantively unreasonable, and that the
district court did not abuse its discretion in imposing a sentence of 240 months. The district court’s
sentence is affirmed.
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