*

The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0080p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

BILLY ROLAND PHILLIPS,

 Defendant-Appellant.

X

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-

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-

>

,

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-

N

No. 06-6191

Appeal from the United States District Court

for the Eastern District of Kentucky at London.

No. 05-00066—Karen K. Caldwell, District Judge.

Submitted: September 17, 2007

Decided and Filed: February 19, 2008 

Before: MOORE and GRIFFIN, Circuit Judges; GRAHAM, District Judge.*

_________________

COUNSEL

ON BRIEF: Stephan Charles, STEPHAN CHARLES, COUNSELLOR OF LAW, Manchester,

Kentucky, for Appellant. Charles P. Wisdom, Jr., John Patrick Grant, ASSISTANT UNITED

STATES ATTORNEYS, Lexington, Kentucky, for Appellee. 

GRIFFIN, J., delivered the opinion of the court, in which GRAHAM, D. J., joined.

MOORE, J. (p. 10), delivered a separate opinion concurring in part and concurring in the judgment.

_________________

OPINION _________________

GRIFFIN, Circuit Judge. Defendant Billy Roland Phillips pleaded guilty to one count of

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and was sentenced to

a term of 30 months of incarceration. Phillips appeals his sentence, arguing that the district court

engaged in impermissible fact-finding at sentencing in contravention of the Sixth Amendment, the

district court erred in finding that firearms possessed by Phillips constituted relevant conduct under

U.S.S.G. § 1B1.3, and his sentence is procedurally unreasonable. We disagree and affirm.

1
No. 06-6191 United States v. Phillips Page 2

1

In 1982, Phillips pleaded guilty in federal court to the felony offense of possessing and concealing counterfeit

United States obligations, and was sentenced to three years of incarceration. That same year, Phillips also pleaded guilty

in Kentucky state court to the felony offense of receiving stolen property and was sentenced to a term of five years of

imprisonment. 

2

Apparently, Phillips was not charged in connection with this incident because he claimed that he carried the

firearms in self-defense. Phillips believes – and the government does not dispute – that several attempts have been made

on his life and that a Kentucky resident, Jennings White, has offered a $25,000 contract to have Phillips killed. This

belief is significant because it explains Phillips’s repeated illegal possession of firearms.

I.

On August 20, 2002, a special agent with the Bureau of Alcohol, Tobacco, and Firearms

(“ATF”) was informed by a Kentucky State Police (“KSP”) detective that Billy Phillips, a convicted

felon who had lost the right to possess firearms, had been involved in a shooting incident on

August 3, 2002, with Harold Wayne Collins near Manchester, Kentucky.1

 When questioned about

the incident, Phillips stated that he was traveling east on the highway when he observed Collins

make an obscene gesture towards him. Phillips then traveled back to the parking lot to determine

who was accompanying Collins, when, according to Phillips, several individuals shot at him.

Phillips reported being struck in the back twice by bullet fragments, but did not suffer any serious

injuries. 

A search of Phillips’s vehicle revealed two loaded handguns – a .45 caliber pistol and a nine

millimeter pistol – in a briefcase located in the passenger compartment. Officers also discovered

a rifle in the trunk. The ATF agent conducted a firearms trace on the nine millimeter pistol and

learned that it had been stolen from its rightful owner in Bloomington, Indiana, who informed the

agent that the pistol had been taken from his vehicle in 1996. The ATF agent obtained a report from

the Indianapolis Police Department to verify the theft. Ultimately, however, Phillips was not

charged for possessing any of these firearms, including the stolen nine millimeter.2

Two years later, on May 9, 2004, Phillips was stopped by a Kentucky Vehicle Enforcement

(“KVE”) officer while being observed operating his vehicle with broken brake lights. The officer

noticed an open can of beer in the vehicle’s cup holder and detected a strong odor of alcohol

emitting from Phillips. The officer administered a portable Breathalyzer test, which determined

Phillips’s blood alcohol level to be .163. A second officer who had arrived on the scene to render

assistance then arrested Phillips for driving under the influence of intoxicants. The first officer

conducted a search of Phillips’s vehicle and discovered several firearms behind the passenger seat.

After securing a search warrant for the vehicle, a later search of the vehicle uncovered a loaded .22

caliber pistol, a loaded 7.62 x 39 millimeter rifle, a loaded .45 caliber pistol, a loaded 12 gauge pump

action shotgun, and various ammunition. Thereafter, Phillips was indicted in connection with this

incident for being a felon in possession of four firearms, in violation of 18 U.S.C. § 922(g)(1).

Phillips later pleaded guilty to the indictment. His sentence for this conviction is the subject of the

present appeal.

On March 9, 2006, an ATF agent and KSP officer received a tip that Phillips was acting as

a bodyguard for someone staying at the Best Western hotel in Manchester. The agent and officer

traveled to the hotel, met with Phillips, and asked him in what room he was staying. Phillips

informed the police that he was staying in room 105, although the inscription on his hotel key read

103. The officers then knocked on the door to room 105 and received permission to enter. The

room’s guest then pushed open the door that connected rooms 105 and 103, and the ATF agent

observed a silver pistol lying on a table. After the ATF agent obtained a federal search warrant for

room 103, a search led to the seizure of a loaded .45 caliber pistol and various rounds of

ammunition. 
No. 06-6191 United States v. Phillips Page 3

3

Although Phillips challenges the district court’s ability to engage in fact-finding, see discussion, infra, and its

determination that his illegal possession of firearms on August 3, 2002, was relevant conduct, he does not challenge the

specific finding that the nine millimeter pistol was stolen.

4

That Phillips’s 2006 charge for possessing firearms as a felon was dismissed pursuant to his plea agreement

does not preclude it from being offered as relevant conduct at sentencing. “[I]t is well settled in this circuit that conduct

forming the basis for counts dismissed pursuant to a plea agreement may be considered in determining a defendant’s base

offense level under the Sentencing Guidelines.” United States v. Hill, 79 F.3d 1477, 1481 (6th Cir. 1996).

Phillips entered into a plea agreement regarding his May 9, 2004, arrest. The district court

conducted a sentencing hearing and, over Phillips’s objections, found that Phillips’s illegal

possessions of firearms in August 2002 and March 2006, were “relevant conduct” pursuant to

U.S.S.G. § 1B1.3(a)(2). Phillips was therefore deserving of a four-point increase to his base offense

level under the United States Sentencing Guidelines. The court found further that an additional twopoint enhancement was warranted because one of the firearms – the nine millimeter pistol seized in

August 2002 – was stolen. The court then sentenced Phillips to a term of 30 months of

incarceration. This timely appeal followed. 

II.

Under the advisory Guidelines scheme, we review a criminal defendant’s sentence for

reasonableness. United States v. Lancaster, 501 F.3d 673, 675 (6th Cir. 2007). In conducting

reasonableness review, 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 § 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.” Gall v. United States, 552 U.S. —, No.

06-7949, Slip Op. at 12 (Dec. 10, 2007). Phillips contends that the district court improperly

calculated his Guidelines range by incorrectly finding his illegal possession of firearms on August 3,

2002, and March 9, 2006, to be “relevant conduct” pursuant to U.S.S.G. § 1B1.3(a)(2), thus resulting

in a four-point increase of his base offense level under the Guidelines.3

 The government argues that

Phillips’s repeated possessions of the firearms were connected by a common purpose – his desire

to protect himself from attempts on his life – and that his 2002 and 2006 possessions of firearms

were part of the “same course of conduct” as his charged 2004 possession of firearms. We agree

with the government. 

We accept factual findings made by the district court at sentencing unless they are clearly

erroneous. 18 U.S.C. § 3742(e). Because the district court’s determination of “relevant conduct”

under the Sentencing Guidelines involves the application of law to fact, we review the district

court’s determination de novo. United States v. Shafer, 199 F.3d 826, 830 (6th Cir. 1999). The

government bears the burden of proof, by a preponderance of the evidence, that Phillips’s

possessions of firearms in 2002 and 2006 were relevant conduct. United States v. Moored, 997 F.2d

139, 144 (6th Cir. 1993).

Phillips’s 2002 and 2006 possessions of firearms may be added to his offense level as

relevant conduct if these possessions were “part of the same course of conduct or common scheme

or plan” as Phillips’s underlying felon-in-possession conviction.4

 U.S.S.G. § 1B1.3(a)(2). “For two

or more offenses to constitute part of a common scheme or plan, they must be substantially

connected to each other by at least one common factor, such as common victims, common

accomplices, common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3, application note

9(A). If this criteria is not met, Phillips’s prior possessions of firearms may nevertheless be counted

as relevant conduct if they were part of the same course of conduct. “Offenses that do not qualify

as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct
No. 06-6191 United States v. Phillips Page 4

if they are sufficiently connected or related to each other as to warrant the conclusion that they are

part of a single episode, spree, or ongoing series of offenses.” U.S.S.G. § 1B1.3, application note

9(B). 

We consider the degree of similarity of the offenses, the regularity of the offenses, and the

time interval between the offenses to assist us in determining whether offenses are sufficiently

connected to be considered part of the same course of conduct. Id. The Guidelines counsel a

“sliding scale approach” to these factors, explaining that “[w]hen one of the above factors is absent,

a stronger presence of at least one of the other factors is required.” Id.; see also Hill, 79 F.3d at

1482 (describing Guidelines commentary as requiring a “sliding scale approach”).

Although there is no previous published opinion from our circuit addressing this issue, our

sister circuits have held that “the contemporaneous, or nearly contemporaneous, possession of

uncharged firearms is . . . relevant conduct in the context of a felon-in-possession prosecution.”

United States v. Powell, 50 F.3d 94, 104 (1st Cir. 1995); see also United States v. Gales, 137 F.

App’x 875, 877-78 (6th Cir. 2005) (unpublished) (upholding application of two-point enhancement

for relevant conduct where defendant was convicted under 18 U.S.C. § 922(g) and was found to

have possessed two other firearms within two months from charged conduct). These opinions have

not set forth any bright line rule regarding the temporal scope of “relevant conduct,” but have

generally upheld the relevant conduct designation where the offenses were within a nine-month

period. See, e.g., United States v. Nichols, 464 F.3d 1117, 1124 (9th Cir. 2006) (upholding relevant

conduct enhancement where defendant possessed firearms contemporaneously with his offense of

conviction and admitted that he regularly possessed stolen weapons); United States v. Brummett, 355

F.3d 343, 345 (5th Cir. 2003) (upholding relevant conduct enhancement for possession of four

firearms on three separate occasions within a nine-month period); United States v. Wallace, 280 F.3d

781, 785 (7th Cir. 2002) (possession of firearms four weeks apart from underlying offense); United

States v. Santoro, 159 F.3d 318, 321 (7th Cir. 1998) (possession of uncharged assault rifle along

with two other weapons within a six- to nine-month period); United States v. Windle, 74 F.3d 997,

1000-01 (10th Cir. 1996) (possession of illegal firearms over four- to five-month period sufficient

to constitute “same course of conduct”). See also United States v. Griggs, No. 05-4581, 2007 U.S.

App. LEXIS 18115 (4th Cir. July 30, 2007) (unpublished) (upholding relevant conduct enhancement

for defendant’s possession of “more than seventy firearms” within a four-month period). 

We have addressed the applicability of the relevant conduct enhancement most commonly

in the drug context. In Hill, 79 F.3d at 1484-85, we concluded that an isolated drug transaction

nineteen months before the transaction for which the defendant was indicted could not be considered

relevant conduct. Applying the factors identified in application note 9 to U.S.S.G. § 1B1.3, we first

noted that “temporal proximity is extremely weak in that nineteen months is an exceedingly long

lapse between offenses.” Id. at 1484. We next observed that the “regularity” factor was “completely

absent . . . for the government proved only one prior offense.” Under § 1B1.3’s sliding scale

approach, the government was then “required to compensate for the weakness of the temporal and

regularity factors by presenting substantially stronger proof of similarity.” Id. We ultimately held

that the government’s proof of similarity – that the same type of drug was sold during both

transactions – was insufficient to demonstrate “relevant conduct.” Id.
No. 06-6191 United States v. Phillips Page 5

5

In application note 9 to § 1B1.3, “common purpose” is listed as a factor to show a “common scheme or plan”

under note 9(A), rather than as a factor to show “same course of conduct” under note 9(B). Nevertheless, as we

explained in Hill, “there is considerable overlap” between the terms “common scheme or plan” and “same course of

conduct.” Hill, 79 F.3d at 1483. Thus, “the same factors listed as supporting a finding of a ‘common scheme or plan,’

which include common victims, common offenders, common purpose, or similar modus operandi, may also bolster the

similarity factor in analyzing whether a prior offense is part of the ‘same course of conduct’ as the offense of conviction.”

Id. (emphasis added). Indeed, “it is difficult to conceive of other factors that could be used to support a finding that two

offenses were similar.” Id.

In contrast, in United States v. Gilbert, 173 F.3d 974 (6th Cir. 1999), we upheld the district

court’s determination that the defendant’s possession of crack cocaine in February of 1993 and

December of 1994 qualified as relevant conduct in relation to an August 7, 1996, arrest for

distributing crack cocaine. We distinguished Hill on the grounds that “there was strong evidence

that the earlier transactions were part of the same continuous course of conduct as was the offense

charged in the indictment.” Gilbert, 173 F.3d at 978. We observed that “the transactions all

involved the same gang, the same type of drug, the same general location, and the same modus

operandi.” Id.

Applying these authorities, and the factors identified in application note 9 to U.S.S.G.

§ 1B1.3, we hold that the district court properly attributed Phillips’s possession of firearms in 2002

and 2006 as relevant conduct. Phillips argues that this case is analogous to Hill, but there are two

significant differences present here that apply to the § 1B1.3 factors and distinguish this case from

Hill. First, the degree of regularity is stronger here than in Hill, where the sole other offense

considered “relevant conduct” was an isolated drug transaction nineteen months prior to the offense

of conviction. In the present case, there are two incidents – in addition to the charged conduct – that

are identical to the offense of conviction. Moreover, one of these incidents occurred after Phillips

was arrested and indicted in connection with the offense of conviction, which suggests that his arrest

for being a felon in possession did not deter him from possessing firearms and that he may have

carried firearms regularly. 

Second, the degree of similarity is stronger. The relevant conduct – illegally possessing

firearms as a felon – is identical to the offense of conviction. More importantly, Phillips’s repeated

possession of firearms appears linked by a common purpose: self-defense.5

 In his sentencing

memorandum, Phillips recounted the attempts on his life and suggested that a shorter sentence was

appropriate because he carried firearms in self-defense. At the sentencing hearing, he explained why

he had possessed firearms illegally: 

I knew it was unlawful for me to possess those guns, but I felt that it was essential

to my life and my mother’s life that I have those guns. The attempts that were made

on my life, the bullets that were fired into my home with my mother in it, I felt I had

to have those guns to stay alive and keep my mother alive.

Phillips’s self-defense explanation indicates that each incident of illegal firearm possession is

connected by the common purpose of self-defense and suggests that he habitually carried firearms.

Contra Hill, 79 F.3d at 1485 (observing that government had not “suggested any reason to explain

the lapse between the first [drug] transaction and the second, except to imply that Hill must have

been selling drugs to support himself during this period and simply did not get caught. We rejected

that implication above, because the government pointed to no evidentiary support.”).

Although there is a significant time lapse between offenses, because there is substantial

similarity between the offending incidents and because Phillips has indicated that he carried firearms

regularly, we hold that the district court did not err in finding that his 2002 and 2006 possessions

of firearms were part of the “same course of conduct” as his 2004 felon-in-possession charge and

in applying these instances of relevant conduct to his base offense level.
No. 06-6191 United States v. Phillips Page 6

III.

Next, Phillips argues that the district court violated his Sixth Amendment rights when it

engaged in judicial fact-finding concerning his relevant conduct. Phillips contends that such factfinding is inconsistent with United States v. Booker, 543 U.S. 220 (2005). Phillips’s argument is

foreclosed by our post-Booker jurisprudence and therefore lacks merit. 

We have held repeatedly that Booker and its precursor, Apprendi v. New Jersey, 530 U.S.

466 (2000), did not eliminate judicial fact-finding during sentencing. Rather, district courts must

“calculate the Guideline range as they would have done prior to Booker, but then sentence

defendants by taking into account all of the relevant factors of 18 U.S.C. § 3553, as well as the

Guidelines range.” United States v. Stone, 432 F.3d 651, 655 (6th Cir. 2005); see also United States

v. Mickens, 453 F.3d 668, 673 (6th Cir. 2006). Moreover, Apprendi is not triggered so long as the

judicial findings of fact do not result in the defendant receiving a sentence that exceeds the statutory

maximum. United States v. Hough, 276 F.3d 884, 890 (6th Cir. 2002); United States v. Schulte, 264

F.3d 656, 660 (6th Cir. 2001); see also United States v. Woods, 39 F. App’x 72, 75 (6th Cir. 2002)

(unpublished) (“This court has declined to require that enhancements imposed pursuant to the

Guidelines be found by a jury beyond a reasonable doubt as long as the sentence imposed does not

exceed the statutory maximum.”). 

Phillips acknowledges that his argument has been rejected by our court in prior opinions, but

contends that the “reasoning of other decisions by this Court that judicial fact-finding is permissible

in applying the Sentencing Guidelines because the Guidelines are no longer mandatory is both

circuitous and illusory.” Phillips, however, fails to cite any intervening Supreme Court or en banc

decision from this circuit that is inconsistent with this court’s post-Booker jurisprudence, and this

court is bound by its prior opinions in Stone and Mickens. See Cmtys. for Equity v. Mich. High Sch.

Ath. Ass’n, 459 F.3d 676, 689 (6th Cir. 2006) (“Unless an inconsistent decision of the United States

Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior

decision,” the court is bound by its prior opinions) (internal citation and quotation omitted). Thus,

the district court acted properly in making findings of fact at Phillips’s sentencing hearing. See

United States v. Moncivais, 492 F.3d 652, 665 (6th Cir. 2007); see also United States v. Flores, 477

F.3d 431, 438-39 (6th Cir. 2007) (remanding for resentencing because, inter alia, the district court

erroneously believed it was prohibited from judicial fact-finding). 

IV.

Finally, Phillips asserts that his sentence is procedurally unreasonable. He contends that the

district court failed to consider the factors listed in 18 U.S.C. § 3553 and did not articulate its
No. 06-6191 United States v. Phillips Page 7

6

Title 18 U.S.C. § 3553 requires a district court to consider the following factors: 

(1) the nature and circumstances of the offense and the history and characteristics of the

defendant;

(2) the need for the sentence imposed –

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense; 

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or

other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

* * *

(6) the need to avoid unwarranted sentence disparities among defendants with similar records

who have been found guilty of similar conduct; and 

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a)(2)-(3), (6), (7). 

reasons for rejecting Phillips’s arguments for a lower sentence.6 Again, we disagree and affirm

Phillips’s sentence.

As an initial matter, we review the procedural reasonableness of Phillips’s sentence for plain

error. In United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), we instructed district courts, after

announcing a proposed sentence, to “ask the parties whether they have any objections to the

sentence . . . that have not previously been raised.” Id. at 872. If a party failed to raise an objection

after being asked this question, we held that plain-error review applies on appeal to any arguments

not preserved. Id. Our recent en banc opinion in United States v. Vonner, No. 05-5295, — F.3d —,

2008 WL 320773 (6th Cir. Feb. 7, 2008) (en banc), makes clear that the Bostic rule applies to postBooker procedural reasonableness challenges. See Vonner, 2008 WL 320773 at *3 (holding that

plain-error review applied to appellant’s procedural reasonableness argument where defendant

answered “No” to district court’s Bostic question at sentencing, and explaining that although “this

answer did not undermine Vonner’s right to appeal issues he had ‘previously raised,’ it did

undermine his right to challenge the adequacy of the court’s explanation for the sentence – an issue

that became apparent as soon as the court finished announcing its proposed sentence and that

counsel nonetheless declined the court’s invitation to address”).

Here, after the district court announced a proposed sentence of thirty months of incarceration

and explained its reasons for doing so, the court asked the parties, “[h]aving noted all of the previous

objections . . . is there any other legal objection that sentence should not be imposed as stated?”

“No, your Honor, ” Phillips’s counsel replied. Phillips’s failure to preserve a challenge to the

procedural reasonableness of his sentence accordingly requires us to apply plain-error review. Thus,

for us to reverse Phillips’s sentence as unreasonable, Phillips must show “(1) error (2) that was

obvious or clear (3) that affected defendant’s substantial rights and (4) that affected the fairness,

integrity, or public reputation of the judicial proceedings.” Vonner, 2008 WL 320773 at *3 (internal

quotations omitted). This is a heavy burden for Phillips to bear, for “the plain error doctrine is to

be used sparingly, only in exceptional circumstances, and solely to avoid a miscarriage of justice.”

United States v. Cox, 957 F.2d 264, 267 (6th Cir. 1992). 

Before the district court, Phillips disputed the district court’s relevant conduct application

to his base offense level and sought a split sentence of ten months, five of which he would serve in
No. 06-6191 United States v. Phillips Page 8

prison, and five served on supervised home arrest. He based this request on two reasons: his alleged

need to carry the firearms in self-defense and the poor health of his elderly mother, with whom he

lived. On appeal, Phillips cites United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006), for

the proposition that “[w]here a defendant raises a particular argument in seeking a lower sentence,

the record must reflect both that the district judge considered the defendant's argument and that the

judge explained the basis for rejecting it” and argues that the district court failed to articulate its

reasons for rejecting his request for a shorter sentence. We disagree. 

In announcing Phillips’s sentence, the court stated:

[P]ursuant to the Sentencing Reform Act of 1984, as amended or modified by the

Supreme Court’s decision on January the 12th, 2005, in United States v. Booker and

Fanfan, it is the judgment of this Court that the defendant Billy Roland Phillips, is

hereby committed to the custody of the Bureau of Prisons for a term of 30 months.

The Court contemplated exceeding the guidelines in this case. This defendant, even

though threats had been made against his life, subsequently became employed as a

private investigator. And even though he’s been shot at, he’s never backed down

from a fight or removed himself from the situation. In fact, since he has known that

contracts have been taken out on his own life, he has actually engaged in protecting

others from threats on their lives. This suggests to the Court that this defendant is

as much an aggressor as a victim in this case.

However, when the Court considers that it has already held this defendant

accountable for seven guns, or for a larger number of guns in terms of relevant

conduct, the Court finds that a guideline sentence is appropriate in this case, that it

addresses the nature and circumstances of the offense, that it promotes respect for the

law and affords adequate deterrence for this particular criminal conduct.

In the second paragraph of the above statement, the district court clearly rejected Phillips’s

self-defense argument, pointing out that Phillips has not made any attempt to avoid confrontation

and, by working as a bodyguard, has put other people at risk by bringing them into close contact

with him. Although the court did not specifically respond to Phillips’s claim concerning the health

of his mother, its statement that it “contemplated exceeding the guidelines in this case” and that

Phillips “is as much an aggressor as a victim in this case,” indicated that the court found Phillips to

be too dangerous to allow in public after serving only five months in prison. Moreover, the court

agreed to recommend that Phillips serve his sentence in his hometown of Manchester, near his

mother, which indicates that it considered Phillips’s concern for his mother’s health and “the kinds

of sentences available” at its disposal. 18 U.S.C. § 3553(a)(3); see also United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) (noting that recommendation for defendant to serve sentence close

to home showed that district court took into account “the kinds of sentences available”). See also

Vonner, 2008 WL 320773 at *5 (observing that, although FED. R. CRIM. P. 32 requires the

sentencing court to rule on any controverted matter, the Rule does not require the court to “give a

lengthy explanation for its ruling,” and holding that the district court’s rejection of defendant’s

request for a shorter sentence constituted a sufficient ruling).

Phillips also suggests that the district court did not adequately consider the § 3553(a) factors.

Although the review of specific § 3553(a) factors undoubtedly facilitates appellate review, “this

court has never required ‘the ritual incantation’ of the factors to affirm a sentence.” United States

v. Williams, 436 F.3d 706, 709 (6th Cir. 2006). Moreover, as the Supreme Court’s opinion in Rita

v. United States, 551 U.S. —, 127 S. Ct. 2456 (June 21, 2007), makes clear, where – as here – the

district court is applying a Guidelines sentence, a detailed explanation of the § 3553(a) factors may

be unnecessary:
No. 06-6191 United States v. Phillips Page 9

The 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. See, e.g., United States v. Taylor, 487 U.S. 326,

336-337 (1988). Nonetheless, when a judge decides simply to apply the Guidelines

to a particular case, doing so will not necessarily require lengthy explanation.

Circumstances may well make clear that the judge rests his decision upon the

Commission’s own reasoning that the Guidelines sentence is a proper sentence (in

terms of § 3553(a) and other congressional mandates) in the typical case, and that the

judge has found that the case before him is typical. Unless a party contests the

Guidelines sentence generally under § 3553(a) – that is argues that the Guidelines

reflect an unsound judgment, or, for example, that they do not generally treat certain

defendant characteristics in the proper way – or argues for departure, the judge

normally need say no more.

Rita, 127 S. Ct. at 2468.

Here, the district court discussed the “history and characteristics of the defendant,” observing

that Phillips has been an “aggressor” in his confrontations with others and that he has “never backed

down from a fight or removed himself from the situation” when confronted. See 18 U.S.C.

§ 3553(a)(1). The court concluded further that Phillips’s sentence at the high end of the applicable

Guidelines range was appropriate because it “addresses the nature and circumstances of the offense,

that it promotes respect for the law and affords adequate deterrence for this particular criminal

conduct.” See 18 U.S.C. § 3553(a)(2)(A)-(B). This discussion does not amount to plain error. 

Because the district court adequately considered the § 3553(a) factors and explained why it

was sentencing Phillips at the high end of the Guidelines range, we conclude that the district court

did not plainly err and that Phillips’s sentence is procedurally reasonable.

V.

For these reasons, we affirm.
No. 06-6191 United States v. Phillips Page 10

_________________________________________________________________

CONCURRING IN PART AND CONCURRING IN THE JUDGMENT _________________________________________________________________

KAREN NELSON MOORE, Circuit Judge, concurring in part and concurring in the

judgment. I join in Parts I and II of the majority opinion. I concur in only the judgment in Parts III

and IV. Bound as I am by the majority opinion in United States v. Vonner, No. 05-5295, --- F.3d ---

(6th Cir. 2008) (en banc), I concur in the judgment that the district court did not commit plain error

and that the sentence therefore was not procedurally unreasonable.