NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0385n.06
Case No. 21-5449
UNITED STATES COURT OF APPEALS
FILED
Sep 23, 2022
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE MIDDLE DISTRICT OF
) TENNESSEE
STEVE A. BRADEN, )
Defendant-Appellant. ) OPINION
)
Before: GILMAN, GRIFFIN, and THAPAR, Circuit Judges.
The Court delivered a PER CURIAM opinion. GILMAN, J. (pp. 8–10), delivered a
separate dissenting opinion.
PER CURIAM. Steve Braden moved the district court for a reduced sentence under the
First Step Act. The district court shortened Braden’s sentence for his drug-possession offense.
But it left the total term of imprisonment intact. We affirm.
I.
Police arrested Steve Braden in 2008 for possessing 10.1 grams of crack cocaine, 2.6 grams
of powder cocaine, and 3 firearms. Based on this conduct, a jury convicted him on three counts:
(1) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(i); (2) possessing
cocaine with the intent to distribute the drug, in violation of 21 U.S.C. § 841(a)(1); and
(3) possessing firearms in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). Since Braden is a career offender and an armed career criminal, the district court
No. 21-5449, United States v. Braden
originally sentenced him to forty years for the first two offenses (to run concurrently) and five
years for the third offense (to run consecutively), for a total of forty-five years.
Braden moved for a reduced sentence under the First Step Act. And the district court
reduced Braden’s sentence for the drug-possession offense—the only offense covered by the
Act—to thirty years. But it left the other two sentences intact. So Braden’s total term didn’t
change; it remained forty-five years. Braden appeals.
II.
Braden contests both the procedural and substantive reasonableness of his sentence. We
generally review reasonableness for an abuse of discretion. See United States v.
Ramirez-Figueredo, 33 F.4th 312, 318 (6th Cir. 2022) (procedural reasonableness); United States
v. Sexton, 889 F.3d 262, 265 (6th Cir. 2018) (substantive reasonableness). But we review
unpreserved procedural-reasonableness arguments for plain error. See Ramirez-Figueredo, 33
F.4th at 318. We address Braden’s arguments in turn.
A.
Start with procedural reasonableness. A sentence is procedurally reasonable when the
district court properly calculates the Guidelines range, treats the Guidelines range as advisory,
considers the other 18 U.S.C. § 3553(a) factors, selects the sentence based on facts that aren’t
clearly erroneous, and adequately explains why it chose the sentence. United States v. Parrish,
915 F.3d 1043, 1047 (6th Cir. 2019). The district court must also “make clear that it reasoned
through the parties’ arguments” for their preferred sentences. Concepcion v. United States,
142 S. Ct. 2389, 2404 (2022) (cleaned up) (quoting United States v. Maxwell, 991 F.3d 685, 693
(6th Cir. 2021)). But that doesn’t mean that the court needs to “expressly rebut each argument.”
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Id. (quoting Maxwell, 991 F.3d at 694). It’s enough that the “record as a whole shows that it
considered the issue.” United States v. Smithers, 960 F.3d 339, 345 (6th Cir. 2020).
Braden asserts that the district court made three procedural errors: It failed to (1) address
Braden’s nonfrivolous arguments for leniency, (2) justify its refusal to reduce the total sentence
length considering “Congress’s rejection of the 100:1 crack-to-powder ratio,” and (3) acknowledge
“the full extent of its resentencing authority” under the First Step Act. Appellant Br. 15. We
disagree.
Braden’s arguments for leniency. Braden raises several leniency arguments. First, he
asserts that his sentence is “extraordinarily harsh.” Id. at 23. But the district court didn’t think so.
And it adequately explained why: In its words, a further reduction “would overlook the seriousness
of his offenses and criminal history.” R. 209, Pg. ID 1363. The record supports this conclusion.
Braden’s three drug- and weapons-related offenses are serious. And his criminal history—
including “convictions for robbery, drug trafficking, assault, aggravated assaults, violation of an
order of protection, and theft of property”—is substantial. R. 209, Pg. ID 1363. Thus, the district
court’s failure to rebut Braden’s argument doesn’t constitute procedural error. See Concepcion,
142 S. Ct. at 2404.
Second, Braden argues that his total sentence is “overly harsh” considering the
government’s plea offers—both of which Braden rejected. Appellant Br. 23. But rejected plea
offers aren’t relevant to the court’s weighing of the section 3553(a) factors and thus don’t change
the calculus for the sentencing court’s decision.* See United States v. Austin, No. 21-1363, 2021
*
Braden cites United States v. Payton, 754 F.3d 375 (6th Cir. 2014), to argue that the rejected plea offers are relevant.
But our court in Payton merely noted the vast delta between the government’s proposed sentence and the sentence
imposed—a sentence more than twice the top end of the Guidelines range—as an example of a major departure from
the Guidelines that required “significant explanation.” Id. at 378. So Payton doesn’t even discuss rejected plea offers,
much less suggest that the district court must consider a rejected plea offer when imposing a within-Guidelines
sentence.
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No. 21-5449, United States v. Braden
WL 4771125, at *2 (6th Cir. Aug. 9, 2021). And as noted above, the district court explained that
further sentence reduction wasn’t justified despite Braden’s arguments to the contrary. So the
district court didn’t err in failing to reference Braden’s rejected plea offers. See Smithers, 960 F.3d
at 345.
Third, Braden asserts that the district court didn’t consider his post-incarceration
rehabilitation efforts. Not true. The district court specifically referenced Braden’s post-
incarceration conduct when it mentioned his “numerous disciplinary infractions”—Braden had
more than twenty-five disciplinary infractions while in the state penitentiary and accrued an
additional nine post-sentencing. R. 209, Pg. ID 1363; see also R. 120, Pg. ID 633–44; R. 212,
Pg. ID 1408. Combined with the district court’s acknowledgment (and rejection) of Braden’s
request for “a greater sentence reduction,” that reference shows that the district court sufficiently
weighed Braden’s post-incarceration conduct when imposing its modified sentence. See United
States v. Osborne, 860 F. App’x 77, 81 (6th Cir. 2021). Hence, its analysis of Braden’s post-
incarceration conduct doesn’t amount to procedural error.
And fourth, Braden argues that the delta between the government’s plea offers and his
sentence shows that he was punished for exercising his right to a jury trial. But he didn’t raise this
argument below. So we review it for plain error. See Ramirez-Figueredo, 33 F.4th at 318. Braden
can’t point us to any “binding case law” that requires a district court to explain the difference
between a rejected plea offer and the sentence imposed. See United States v. Austin, 825 F. App’x
324, 326 (6th Cir. 2020) (citation omitted). Thus, the district court didn’t plainly err by not
mentioning the delta between Braden’s rejected plea offers and the sentence imposed.
Congress’s reasons for rejecting the 100:1 crack-to-powder ratio. Shifting gears, Braden
faults the district court for not acknowledging “Congress’s reasons for rejecting the 100:1 ratio”
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or how that ratio “impacted Braden’s original sentence.” Appellant Br. 22–23. But the district
court’s job isn’t to opine on congressional policy—it’s to identify and apply the law. And that’s
what the court did here. It properly recognized the reduced Guidelines range and explained why
no more than a five-year sentence reduction for Braden’s drug-possession charge was warranted.
That’s enough. See Smithers, 960 F.3d at 345. Its failure to expressly acknowledge congressional
policy doesn’t amount to procedural error.
The district court’s authority. Braden asserts that the district court procedurally erred by
failing to explicitly recognize “the full extent of its power under the First Step Act.” Appellant
Br. 24. Specifically, he asked the district court to reduce his overall sentence because his cocaine
and felon-in-possession convictions were grouped together. We have not yet decided whether a
district court may alter a sentence based on grouped offenses when some offenses are covered by
the First Step Act and some are not. See United States v. Chambers, Nos. 21-1331/1378,
2022 WL 612805, at *2 (6th Cir. Mar. 2, 2022). We do not decide that issue today either.
To be sure, the district court never expressly stated whether it had the authority to reduce
Braden’s total sentence. But we must assume that the district court correctly understood the scope
of its discretionary authority “absent clear evidence to the contrary.” See United States
v. McConnon, 432 F. App’x 497, 500 (6th Cir. 2011). And there’s nothing in the record to suggest
the district court misunderstood that power. In fact, the court did as Braden requested: it
“consider[ed] all the usual sentencing factors in 18 U.S.C. § 3553(a).” R. 183, Pg. ID 1229. Then
the court reduced his sentence for the cocaine offense, leaving intact “[a]ll other provisions of the
judgment.” R. 209, Pg. ID 1363. So the district court didn’t commit a procedural error by failing
to delineate the precise bounds of its authority.
At bottom, Braden hasn’t identified any procedural errors.
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No. 21-5449, United States v. Braden
B.
Now to substantive reasonableness. A sentence is substantively unreasonable where “the
district court imposed a sentence that is greater than necessary” given the section 3553(a)
sentencing factors. United States v. Johnson, 26 F.4th 726, 736 (6th Cir. 2022). But we generally
don’t “second guess sentences on substantive grounds when they fall in the range prescribed by
the Guidelines.” United States v. Owen, 940 F.3d 308, 317 (6th Cir. 2019) (citation omitted).
Thus, within-Guidelines sentences like Braden’s are presumptively reasonable.
Braden argues that his sentence is a “stark outlier” that falls outside the “constellation of
similar cases.” Appellant Br. 29 (quoting United States v. Krueger, 815 F. App’x 847, 851 (6th
Cir. 2020)). As we’ve observed, this is “an unconventional ground” for challenging within-
Guidelines sentences. United States v. Swafford, 639 F.3d 265, 270 (6th Cir. 2011). And Braden
provides no support for his argument. Indeed, each of the data points offered by Braden considers
his charges in a vacuum, detached from the broader context of Braden’s conduct and prior
convictions. But “each case must be considered . . . in the context of that individual’s criminal
history and that individual’s prospects for a safe re-entry into free society.” United States
v. Williams, 817 F. App’x 164, 168 (6th Cir. 2020).
And when viewed in proper context, Braden hasn’t shown that his sentence is a “stark
outlier.” Krueger, 815 F. App’x at 851. Indeed, data shows that career offenders like Braden are
just as likely to get a within-Guidelines sentence (like the one Braden got) as they are to receive a
below-Guidelines sentence that isn’t government sponsored (like the one Braden wants). See U.S.
Sentencing Comm’n, Report to Congress: Career Offender Sentencing Enhancements 27, 35
(Aug. 2016). Put another way, Braden’s sentence isn’t an outlier at all.
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Thus, Braden hasn’t overcome the presumption of substantive reasonableness for the
within-Guidelines sentence imposed.
* * *
We affirm.
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No. 21-5449, United States v. Braden
RONALD LEE GILMAN, Circuit Judge, dissenting. I would vacate the judgment of the
district court and remand because the court did not address Braden’s nonfrivolous argument that
he should be resentenced on both the “crack-cocaine” count and the “felon-in-possession” firearm
count. The court reduced Braden’s sentence for the crack-cocaine count (from 40 years to 30
years) but never acknowledged whether it also had the discretion to reduce Braden’s sentence for
the 18 U.S.C. § 922(g)(i) firearm conviction (leaving his total sentence at 45 years).
A district court’s sentencing decision is procedurally unreasonable if the court “fail[s] to
adequately explain the chosen sentence.” United States v. Kamper, 748 F.3d 728, 739
(6th Cir. 2014) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). A sentencing judge
“should set forth enough to satisfy the appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356 (2007).
In the present case, the district court failed to address either Braden’s felon-in-possession
count or the question of whether it had the authority to do so. The majority notes that the “district
court never expressly stated whether it had the authority to reduce Braden’s total sentence,” but
then “assume[s] that the district court correctly understood the scope of its discretionary
authority . . . .” (Maj. Op. 5) In doing so, the majority appears to assume, without deciding, that
the district court in fact has the discretion to amend both sentences, and that the court understood
this discretion.
Our circuit, however, has not yet decided whether a district court has the authority to
resentence a defendant on a noncovered offense that is grouped with a covered offense for
sentencing purposes. See United States v. Chambers, Case Nos. 21-1331/1378, 2022 WL 612805
(6th Cir. Mar. 2, 2022) (declining to reach the question). Given that we have not yet taken a
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position on the scope of this discretion, and that the district court was completely silent on the
matter, I find no basis for the majority’s assumption that the district court understood the scope of
its discretion.
The district court’s ambiguity also prevents us from understanding the basis for the court’s
decision not to reduce Braden’s total sentence. See United States v. Ross, 858 F. App’x 840, 852
(6th Cir. 2021) (finding the ambiguity “particularly concerning” when we cannot ascertain
whether the district court understood its discretion). Other circuits have remanded where the
record was “unclear” as to whether the court appreciated its discretion in sentencing. See, e.g.,
United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011); United States v. Evans, 293 F.
App’x 63, 65 (2nd Cir. 2008); United States v. Simpson, 182 F. App’x 84, 87 (3rd Cir. 2006).
Here, we are left “to ponder and speculate” as to whether the district court considered
Braden’s arguments that (1) his sentence should be reduced for both of the counts in question, and
(2) his Guidelines-range minimum was now 300 months for these two sentences. See United
States v. McBride, 434 F.3d 470, 475 n.3 (6th Cir. 2006) (noting that procedural unreasonableness
is more likely if the district court’s reasoning is unclear). Such pondering lends itself to finding
“procedural unreasonableness in the court’s sentencing determination.” Id.; see also United States
v. Mosley, 550 F. App’x 277, 278 (6th Cir. 2014) (concluding that “a remand is warranted to
reduce confusion and ensure correctness” because “the record does not allow us to determine the
specific grounds on which the district court grouped Mosley’s offenses and otherwise determined
her guidelines range” (quoting United States v. Sanders, 472 F. App’x 376, 382 (6th Cir. 2012))).
Other circuits have concluded that noncovered offenses that are grouped with covered
offenses for sentencing are also eligible for resentencing. See United States v. Reed, 7 F.4th 105,
110 (2d Cir. 2021); United States v. Spencer, 998 F.3d 843, 846–47 (8th Cir. 2021); United States
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No. 21-5449, United States v. Braden
v. Winters, 986 F.3d 942, 949 (5th Cir. 2021); United States v. Taylor, 982 F.3d 1295, 1300
(11th Cir. 2020); United States v. Hudson, 967 F.3d 605, 607–10 (7th Cir. 2020); United States
v. Gravatt, 953 F.3d 258, 262–64 (4th Cir. 2020). “[T]his trend makes sense; ‘[s]entences for
covered offenses are not imposed in a vacuum, hermetically sealed off from sentences imposed
for non-covered offenses.” Chambers, 2022 WL 612805, at *7 (Clay, J., dissenting) (second
alteration in original) (quoting United States v. Mitchell, 832 F. App’x 387, 390 (6th Cir. 2020)
(Stranch, J., concurring)). I agree with the circuits that have found that a district court does have
the authority to consider both the covered and the noncovered offenses under circumstances similar
to the case before us. Accordingly, I would vacate and remand so that the district court can
properly engage in this analysis.
I also briefly note that the district court should have considered the entirety of Braden’s
post-sentencing rehabilitative conduct, not just his post-sentencing infractions. Although I would
not vacate on this point alone, I find disturbing the district court’s complete silence on the fact that
Braden filed 21 certificates demonstrating his completion of various courses in the Bureau of
Prisons. See United States v. Williams, 972 F.3d 815, 816–17 (6th Cir. 2020) (remanding a district
court’s resentencing decision because it did not address Williams’s argument about his post-
conviction rehabilitative conduct).
For all of the reasons set forth above, I respectfully dissent.
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