NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0698n.06
No. 09-5264 FILED
Oct 05, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF TENNESSEE
SIEG RANSOM, aka J-Rock )
)
Defendant-Appellant. )
Before: DAUGHTREY, COOK, and KETHLEDGE, Circuit Judges.
COOK, Circuit Judge. In this sentencing appeal, we must determine whether the district
judge erred in applying a five-year minimum consecutive sentence under 18 U.S.C. § 924(c) and
whether the district judge abused his discretion in declining to vary downward from the career
offender guidelines range. Concluding that the district judge applied § 924(c) correctly and that the
district judge did not abuse his discretion in determining the sentence, we affirm.
I
Defendant-appellant Sieg Ransom pleaded guilty to one count of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g), two counts of possession of more than five grams
of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and one count of using
and carrying a firearm during and in relation to a drug-trafficking offense in violation of 18 U.S.C.
No. 09-5264
United States v. Ransom
§ 924(c). The probation officer determined in a Presentence Investigation Report (“PSR”) that
Ransom faced a total offense level of 23 and a criminal history category of VI. The probation officer
then applied the career offender guidelines under U.S.S.G. § 4B1.1(b)(A), resulting in an offense
level of 34 (after the subtraction of three levels for acceptance of responsibility) and a guideline
range of 262 to 327 months. The combination of the § 924(c) conviction and other drug-trafficking
convictions added 60 months to Ransom’s advisory range, resulting in a final advisory range of 322
to 387 months.
At sentencing, Judge Samuel H. Mays, Jr., stated the recommended guidelines range and
asked the parties to comment, but the parties did not dispute the calculation, the application of the
five-year minimum consecutive sentence, or the criminal history as stated in the PSR. Defense
counsel voiced Ransom’s position that the career offender guideline should not apply because
Ransom’s criminal record overstated the seriousness of his criminal history. Notwithstanding
counsel’s arguments, the district judge expressed concern that Ransom’s record might have
understated Ransom’s criminal history, noting that Ransom had incurred new charges for drug-
trafficking crimes since the last conviction. He then sentenced Ransom to 322 months of
imprisonment: 120 months for Count 1 and 262 months for Counts 2 and 4 to run concurrently, and
60 months on Count 3 to run consecutively.
Ransom filed a timely notice of appeal on March 3, 2009. He asks this court to overturn the
district court’s decision and to remand for resentencing, contending that the district court should not
-2-
No. 09-5264
United States v. Ransom
have applied a five-year minimum consecutive sentence for the § 924(c) violation and that the
district court abused its discretion in refusing to deviate from the career offender sentencing
guideline.
II
The parties dispute whether 18 U.S.C. § 924(c)(1)(A) requires a minimum consecutive
sentence of five years even where Ransom faces a greater minimum sentence for another count of
conviction unrelated to using, carrying, or possessing a firearm in connection with a crime of
violence or a drug-trafficking crime. “The district court’s application of 18 U.S.C. § 924(c) is a
question of law which we review de novo.” United States v. Langan, 263 F.3d 613, 626-27 (6th Cir.
2001). 18 U.S.C. § 924(c)(1)(A) states in relevant part:
Except to the extent that a greater minimum sentence is otherwise provided by this
subsection or by any other provision of law, any person who, during and in relation
to any crime of violence or drug trafficking crime (including a crime of violence or
drug trafficking crime that provides for an enhanced punishment if committed by the
use of a deadly or dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug trafficking crime—(i) be
sentenced to a term of imprisonment of not less than 5 years . . . .
18 U.S.C. § 924(c)(1)(A) (2006) (emphasis added). Ransom contends that the plain meaning of the
phrase “otherwise provided by this subsection or by any other provision of law” encompasses all
classes of laws without limit. In United States v. Almany, 598 F.3d 238, 242 (6th Cir. 2010), we
-3-
No. 09-5264
United States v. Ransom
endorsed this interpretation of the phrase. The Government proposes instead that “any other
provision of law” refers only to laws that penalize “using, carrying, or possessing a firearm in
connection with a crime of violence or a drug trafficking crime.”
Sometime after the parties submitted their briefs, the Supreme Court ruled on this very issue
in Abbott v. United States, ___ U.S. ___, 131 S. Ct. 18, 29-31 (2010). The Court adopted the
Government’s approach, clarifying that the exception in § 924(c) only applies if another count
imposes a higher minimum penalty for using, carrying, or possessing a firearm in connection with
a drug-trafficking crime or crime of violence. Abbott expressly rejected the interpretation that
Ransom proposes, and the Supreme Court later vacated Almany and remanded the case for further
consideration in light of Abbott. See Abbott, 131 S. Ct. at 23 (“[A] defendant is subject to a
mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by
virtue of receiving a higher mandatory minimum on a different count of conviction.”); United States
v. Almany, 131 S. Ct. 637 (2010). The Sixth Circuit then affirmed the district court decision in
Almany, following Abbott’s interpretation. United States v. Almany, 626 F.3d 901, 901-02 (6th Cir.
2010).
In the instant case, none of Ransom’s other counts concerns using, carrying, or possessing
a firearm in connection with a drug-trafficking crime or crime of violence. As such, the exception
does not apply and § 924(c) requires Ransom to serve the five-year minimum consecutive sentence.
-4-
No. 09-5264
United States v. Ransom
III
Ransom next argues that the district court unreasonably refused to vary from the career
offender guideline, which added 17 to 19 years to the 92- to 115-month guidelines range he would
have otherwise received. “Regardless of whether the sentence imposed is inside or outside the
Guidelines range, the appellate court must review the sentence under an abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 51 (2007). We evaluate the district court’s decision
for procedural reasonableness and substantive reasonableness. United States v. Collington, 461 F.3d
805, 808 (6th Cir. 2006).
A. Procedural Reasonableness
Significant procedural errors, “such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence,” may constitute procedural unreasonableness. Gall, 552 U.S. at 51. As explained in Gall,
a district court should begin the sentencing proceedings with a correct calculation of the guidelines
range, give both parties an opportunity to argue for whatever sentence they deem appropriate, and
consider all of the § 3553(a) factors without presuming the reasonableness of the guidelines range.
Id. at 49-50; cf. Rita v. United States, 551 U.S. 338, 351 (2007) (emphasizing that the presumption
of reasonableness for a sentence within the guidelines applies only at the appellate level). Then,
upon settling on the appropriate sentence, the district court must “adequately explain the chosen
-5-
No. 09-5264
United States v. Ransom
sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”
Gall, 552 U.S. at 50 (citing Rita, 551 U.S. at 357-58).
The parties do not dispute that Judge Mays calculated the guidelines range correctly or that
he gave both parties an opportunity to argue their positions at the sentencing hearing. Ransom
contends, however, that Judge Mays failed to treat the guidelines as advisory and failed to account
adequately for the need to avoid sentencing disparities under § 3553(a)(6).
1. Treatment of Guidelines As Mandatory
Though Judge Mays expressly acknowledged the advisory nature of the guidelines, Ransom
asserts that Judge Mays nevertheless felt “constrained to apply the guidelines in a mandatory
fashion.” As evidence, Ransom construes Judge Mays’s comments to express concern that “he
would not be following the ‘rule of law in this country’ were he to vary from the guidelines,” that
“he could not pick a number out of thin air, that he was not supposed to be guessing what he might
do if Mr. Ransom were somebody else, and that he could not rely on his instincts.”
Ransom misreads these quotes by divorcing them from their context. When Judge Mays
stated, “It doesn’t work under the rule of law in this country,” the “[i]t” in that comment referred to
the act of selecting a sentence without “hav[ing] a reasonable basis for [his] sentence,” not the act
of sentencing outside of the guidelines range. Cf. United States v. Johnson, 640 F.3d 195, 205 (6th
Cir. 2011) (quoting Gall, 552 U.S. at 51) (“When imposing a procedurally reasonable sentence, the
-6-
No. 09-5264
United States v. Ransom
district court must ‘adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.’” (emphasis added in Johnson)). Judge Mays acknowledged
that the guidelines sentence initially seemed high to him, and he considered whether he could
rationally justify imposing a sentence below the guidelines range. Finding that he could not, he
concluded, “the more I look at it, the guidelines appear to be what work here, although, I think they
are real heavy.” Judge Mays’s reasoning on the record suggests a reluctance to act arbitrarily, not
a reluctance to vary from the guidelines. Judge Mays’s express reasoning for staying within the
guidelines suggests that he understood the nonmandatory nature of the guidelines and came to an
independent decision not to vary from them in this case because of Ransom’s recidivism.
2. Failure to Consider Need to Avoid Sentence Disparities Under § 3553(a)(6)
Section 3553(a)(6) requires sentencing courts to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a)(6) (2006). Ransom faults Judge Mays for creating national
disparities in sentencing by “disregarding” United States v. Ennis, 468 F. Supp. 2d 228 (D. Mass.
2006), and two cases from the Northern District of Ohio that followed Ennis: United States v.
Vigorito, No. 4:04-CR-00011, 2007 WL 4125914 (N.D. Ohio Nov. 20, 2007), and United States v.
Ortiz, 502 F. Supp. 2d 712 (N.D. Ohio 2007).
Section 3553(a)(6) refers to national disparities rather than disparities among co-defendants,
but a district judge “may exercise his or her discretion and determine a defendant’s sentence in light
-7-
No. 09-5264
United States v. Ransom
of a co-defendant’s sentence.” United States v. Presley, 547 F.3d 625, 631 (6th Cir. 2008). In Ennis,
the district judge exercised her discretion in sentencing a career-offender below the guidelines range
to avoid the anomalous situation of the street vendor with career-offender status receiving a stiffer
sentence than the more culpable co-defendant drug suppliers who had sufficiently distanced
themselves from the streets to have minimal criminal records. Id. at 230-31, 233 (applying this
rationale to conclude that drug quantity overstated Ennis’s minor role in conspiracy). Rather than
“disregarding” Ennis, Judge Mays explicitly distinguished the Ennis sentencing situation from
Ransom’s. He went on, selecting a sentence consistent with the national guidelines “for uniformity
purposes.”
Nor do Vigorito and Ortiz compel a finding of abuse of discretion in Ransom’s case. While
the district judge in Vigorito evaluated a career offender with the same criminal history category
facing the same sentence range as Ransom, that judge found the predicate offenses minor and gave
weight to Vigorito’s efforts to improve himself in prison before concluding that the tripling effect
of the career offender guideline appeared too harsh given the § 3553(a) analysis for that case. See
Vigorito, 2007 WL 4125914, at *6-8. By contrast, Judge Mays concluded after examining the drug
quantities reported in Ransom’s criminal history that Ransom’s criminal history understated the
seriousness of Ransom’s drug-trafficking activities, noting with particular concern the $1,000 found
on Ransom’s person during one offense and Ransom’s pattern of recidivism. The district judge in
Ortiz faced a co-defendant disparity problem more akin to the situation in Ennis than the situation
before Judge Mays. That district judge explained that a sentence in the career offender guideline
-8-
No. 09-5264
United States v. Ransom
range “would have been greater than necessary, especially given the sentences for the co-
defendants,” Ortiz, 502 F. Supp. 2d at 719 (emphasis added), and he focused exclusively on the
disparity between co-defendants in his analysis of § 3553(a)(6)’s uniformity factor. Ransom’s three
distinguishable cases concerning career offenders fail to persuade us that Judge Mays abused his
discretion here.
B. Substantive Reasonableness
“A sentence is substantively unreasonable if 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.” United States v. Camiscione, 591 F.3d
823, 832 (6th Cir. 2010) (quoting United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009))
(internal quotation marks omitted). “[T]here is no requirement that every [§ 3553] factor be
discussed at length,” United States v. Blackie, 548 F.3d 395, 400 (6th Cir. 2008), but the “black letter
law of this Circuit requires district courts to consider all factors brought to their attention by a
defendant,” United States v. Gunter, 620 F.3d 642, 646 (6th Cir. 2010) (quoting United States v.
Blackwell, 459 F.3d 739, 774 (6th Cir. 2006)).
Unlike Ennis, 468 F. Supp. 2d at 238, where the judge observed that “[t]here are times when
every judge tallies up the Guideline numbers, arrives at a range, and concludes that the result makes
absolutely no sense,” Judge Mays decided that the guidelines sentencing range made sense for
Ransom. Ransom conclusorily insists that his sentence is “greater than necessary” to achieve the
-9-
No. 09-5264
United States v. Ransom
goals stated in § 3553(a)(2), but Judge Mays addressed these factors in open court. Ransom offers
no argument to support his assertion to substantive unreasonableness other than his faulty Ennis
comparison.
IV
Given that Abbott requires the five-year minimum consecutive sentence from § 924(c) to
apply in this case and given that the sentencing hearing transcript does not support Ransom’s view
that the district judge treated the sentencing guidelines as mandatory or failed to consider the §
3553(a) factors, we affirm.
- 10 -