NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0466n.06 No. 07-5845 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. TI MOTHY HA RRI S, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI ST R I CT COURT FOR THE EASTERN DI STRI CT OF TEN NESSEE

Be fore : SUHRHEI

NRI CH, MOORE, and COOK, Circ uit J udg es. COOK, Circuit J udg e. Timothy Har ris pleade d g uilty to conspirac y to distribute fifty g rams
or more of coca ine base (cr ack coca ine), and the district court s en t en ce d h i m to 300 months’ imprisonment. Har

ris now challeng es his sentenc e as (A) violating the Eig ht Am en d m ent; (B ) violating his substantive due proce ss r ights; and (C) proce durally and substantively unrea sonable. Be cause the district court committed p ro ce d u ral err or, we vacate his sentenc e and rema nd for
rese ntencing
. I
. As a result of a drug -traf ficking investiga tion, a g rand jury issued a forty -seve n-count indictment—later incre ased to fif ty
- o n e c o u n ts b y s u p e r s e d in g in d ic tm e n t— a g a in s t H a r r is a n d fiftee nNo. 07-5845

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other defe ndants. The indictment char g ed Har ris with c onspiracy to distribute fifty g rams or more of cra ck coca ine; possession with intent to distribute five g rams or more of cra ck coca ine; and four counts of using a telephone to fac ilitate a drug transac tion. Beca u se Har ris had incurre d sever al felony drug convictions during the 1980s, the g overnme nt filed an e nhance d-sentenc ing notice
. Har ris pleade d g uilty to the conspirac y char g e without the benef it of a plea ag ree ment. Prior to sentenc ing, probation prepa red a prese ntence investiga tion repor t (PSR) that calc ulated an offe nse level of twenty -nine, including a three -leve l acc eptanc e-of -re sponsibili ty reduc tion. T h e PSR assig ned Harris to criminal history cate g ory I I , resulting in a Guidelines rang e of 97–121 months’ imprisonment. But under 21 U.S.C. § 841(b)(1)(A ), Ha rris’s prior

convictions subjected him to a mandatory -minimum sentenc e of l i fe imprisonment, which beca me his Guidelines rang e. See U.S.S.G. § 5G1.1(b). Ne ither par ty objected to the PSR.
The g overnme nt moved for a downwar d depar ture for substantial assistance under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, and the district court g rante d the motion. Fi n d ing that life imprisonment first appea

red for a defe ndant in criminal history cate g ory I I at offe nse level forty -one, the district court depar

ted downwar d two levels, resulting in a Guidelines rang e of 292–365 months’ imprisonment.
The district court then enter tained the parties’ arg uments reg arding the 18 U.S.C. § 3553(a) fac tors. I t senten ce d Ha rris to 300 months’ imprisonment and, at the g overnme nt’s reque st, dismiss ed the r emaining counts ag ainst him. - 2 -No. 07-5845

USA v. H arris
I I
. A.
Har ris first arg ues that the 100:1 cra ck-to-pow der ratio—which Congr ess relied on when
enac t i n g § 841(b)’ s criminal penalties—c rea tes a sentenc e so disproportionate to his crime as to violate the Eig hth Amendment.
Har ris failed t o ra i s e an Eig hth Amendment challeng e befor e the district court, and he advanc es no arg ument on appea l that his case prese nts an “exceptional circ umstance” that war rants revie w of this issue. See United States v. Ursery , 109 F.3d 1129, 1137 (6th Cir. 1997). Given these failing s, we c onsider the Eig hth Amendment cha lleng e for feited.
Yet Harris’s claim also fails on the m erits. This court has consis t en tly held t hat t he 100:1 ratio survives Eig hth A mendment scrutiny , see United States v. Berry , 290 F. App’x 784, 793 (6th Cir. 2008), even if it is based on now-de bunked scienc e-a nd-poli cy t h eories, see United States v. W ashington , 127 F.3d 510, 516–18 (6th Cir. 1997). And our prec edent comports with Kimbrough

v. United States , 552 U.S. 85 (2007), despite Har ris’s asser tion otherwise: Kimbrough say s nothing about the constitutional validity of t h e ratio and thus “provide s no rea son to rec onsider our constitutional rulings on the fac ts of this c ase.” Berry , 290 F. App’x a t 793. Finally , to the extent Har ris attempts to raise an as-a pplied Eig hth Amendment challeng e, he insufficiently develops this

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arg ument—and thus f

orfe its it—bec ause he offe rs no explanation of how his se ntence violates the
narr ow-propor

tionality principle. See McPhe rson v. Kelsey , 125 F.3d 989, 995–96 (6th Cir. 1997).
B.
Har ris next arg ues that the 100:1 ratio “lac ks a substantive basis in fac t or sound policy and there fore violates due process.” Har ris’s s ubstantive due process challeng e fails on the m erits for the same rea son as his Eig hth Amendment challeng e: this court has held that the 100:1 ratio satisfies substantive due proc ess, and that de cision binds us. See W ashington , 127 F.3d a t 516–18.
C. Finally , H a

r r is a tt a c k s h is s e n te n ce as unrea sonable, criticizing the district court for (1) failing to consider his acc eptanc e of responsibility , (2) deeming him violent based on his arr est rec ord and previous convictions when considering the § 3553(a) fac tors, (3) ascri b i n g u n d u e weig ht to the discredited 100:1 ratio, and (4) issuing a sentenc e g rea ter than rea sonably nece ssary . When revie wing a district court’s sentenc e for rea sonablene s s , we first “ensur e that the district court committed no signific ant proce dural err or,” and “then consider the substantive rea sonablene ss of the sentenc e.” Gall v. United States , 552 U.S. 38, 51 (20 0 7 ). I n d o i ng so, we apply “a defe rential abuse- of-discr etion standard.” Id . at 41.
The g overnme nt attempts to fore stall Har ris’s challeng e by claiming that we lack jurisdiction
over his claims. And, in fac t, wher e “the district court g rants a downwar d depar ture for substantial - 4 -No. 07-5845

USA v. H arris
assistance and the de fenda nt’s claim on appea l g oes onl y to the ex tent of the de parture , this Court has no jurisdiction over the appea l.” United States v. Jones , 417 F.3d 547, 551 (6th Cir. 2005). But “a defe ndant may still appea l a sentenc e ‘imposed in violation of the law [or]
. . . imposed as a result of an incorre ct application of the sentenc ing g uidelines.’” United States v. Bullard , 390 F.3d 413, 415 (6th Cir. 2004) (a lterations in orig inal) (quoting 18 U.S.C. § 3742(a)(1) (2))
. Har ris does not challeng e the extent of his substantial-assistance depar ture, but rathe r arg ues for a varia nce and challeng es the rea sonablene ss of his sentenc e—re ndering jurisdiction proper . See United States v. Gapinski , 561 F.3d 467, 475 n.3 (6th Cir. 2009) (“[T]he r ule prec luding revie w of the extent of a downwar d depar t u re . . . woul d not prec lude this court from revie wing the district court’s consideration—or lack there of—of a reque st for a variance based upon the § 3553(a) fac tors
or the overa ll rea sonablenes s o f t h e sentenc e.”)
. His contention that the district court improperly d e c li n e d to a

p p ly a n a c c eptanc e-of

-re sponsibili ty depar

ture beca use it failed to rec og nize its a u th o r it y to apply the Guidelines provisions in any o rd er i t s aw fit, moreove r, essentially arg ues that the district court incorre ctly applied the Guidelines, reinfor ci n g that we may proper ly exercise jurisdiction. See id .; United St ates v. Grant , 636 F.3d 803, 809 (6th Cir. 2011) (e n banc) (finding that the court had jurisdiction to consider an app ea l wh er e, “[a]lt houg h [t he defe ndant] [was] ultimately seeking a g rea ter reduc tion to his sentenc e,” he “ar g u[ed] that the methodology the district court used to impose his sentenc e was in violation of the law”) , petition for cert. filed , — U.S.L .W. — (U.S. Apr. 11, 2011) (No. 10-10011)
.

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Ex erc ising our lawful jurisdiction to revie w the rea sonablene ss of Har ris’s sentenc e, we turn to the merits of his four a rg uments.
1. Acc eptanc e-of

-Responsibility

Depa rture
H a r r is c h alleng es the district court for finding that, beca use the Guideli n e s r e q

u ir e a p p li c a ti o n of the acc eptanc e-of

-re sponsibili ty depar

ture pri o r to application of the mandatory minimum , the mandatory minimum eff

ectively nullified any

such depar

ture. Rely ing on United States v. Harris , 339 F. App’x 533 (6th Cir. 2009), he contends that the district court failed to g rasp both the advisory nature of the Guide lines and its discretion to consider issues out of or der.
But Har ris misconstrues Harris
. Thoug h that case acknow ledg es the advisory nature of the Guidelines, the opinion does not hold that courts may ignor e the Guidelines’ sequential aspec ts. Id
. at 538. Rather, the Guidelines instruct courts to app l y i t s p rovi sions in a particula r order and, specific ally , to deter

mine the base offe nse level and any adjustment for acc eptanc e of responsibility befor e considering a depar ture under Parts H and K of Chapter Five. See U.S.S.G. § 1B1.1; United States v. Coker , 514 F.3d 562, 573 (6th Cir. 2008) (“The Guidelines Manual explains that

‘ a d ju s tm e n ts ’ a

r e applied first to calc ulate a defe ndant’s g uideline rang e, while ‘depa rtures’ are g ive n only at the end o f the sentenc ing proce ss and afte r all adjustments have been applied.” (citation omitted)). To do otherwise would constitute proce dural err or. See United States v. Brooks , 628 F.3d 791, 795–96 (6th Cir. 2011).

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USA v. H arris
I n finding that the mandatory minimum nullified Ha rr i s ’s acc eptanc e-of -re sponsibili ty depar ture, the district c ourt simply applied the Guidelines seque ntially and committed no abuse of discretion.
2. Har

ris’s Violent Conduct
Har ris next criticiz es the district c ourt for considering his recor d of violence in the context of the § 3553(a) fac tors. I n light of the g overnme nt’s acknow ledg ment that the § 3553(a) fac tors are ir r e le v a n t w h e n th e d is trict court considers a substantial-assistance downwar d-depa rture motion atop
a mandatory -minimum sentenc e—and the considera ble amount of time the district court spent discussing the § 3553(a) fac tors—we construe Harris’ s cl aim as a challeng e to the di strict court’s consideration of these fac tors g ener ally
. Be cause t h i s arg ument was not raised befor e the district court, we revie w for plain err or. See United States v. Vonner , 516 F.3d 382, 386 (6th Cir. 2008) (en banc) . Plain error

require s that (1) there is an err or; (2) the err or is clea r or obvious, rathe r than subject to rea sonable dispute; (3) the err or aff

ecte d [hi s] substantial rig hts, whi ch i n t h e ordinary case means it aff

ecte d the outcome of the district court proce edi ng s; and (4) the err or seriously a f

f e c t[ e d ] th e f

airne ss, integ rity or public reputa tion of judicial proce eding s.
United States v. Marcus , 130 S. Ct. 2159, 2164 (2010) (interna l quotation marks and citations omitted).

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USA v. H arris
Courts have a “lim ited ability [t o issue] downward depa rtures when a statutory mandatory minimum is involved.” Bullard , 390 F.3d at 416. Sections 3553(e) and (f) “ar e the exclusive means by which a court may

depar t below the statutory

minimum .” United States v. McIntosh , 484 F.3d 832, 835 (6th Cir. 2007). And “a [§ 3553(e) ] depar ture
. . . must be based solely upon the substantial assistance rende red by the defe ndant.” Bullard , 390 F.3d at 4 1 6 (i n t erna l quotation marks and citation omitted); see also Grant , 636 F.3d at 813–14 (“We have reje cted the notion that fac tors not rela ted t o cooper ation may be considered in connec tion with a § 3553(e) motion.”); United States

v. Cecil , 615 F.3d 678, 695 (6th Cir. 2010) (“[A] district court’s wish to impose a sentenc e beneath the m andator

y minimum cannot be eff ectua ted throug h resor

t to § 3553(a).” ), cert. denied , 131 S. Ct. 1525 (2011).
The dist rict court thus err ed in consideri n g t h e § 3553(a) fac tors befor e im posing Harr is’s sentenc e. An d this err or qualifies as plain. See 18 U.S.C. § 3553(e) (g ranting the district court authority to impose a sentenc e below a mandatory m i n i m u m o n ly “so as to reflect a defendant’s substantial assistance in the investiga tion or prosec ution of another person who has committed a n offe nse” (empha sis added) ); Bullard , 390 F.3d at 416. This consideratio n , mo r e o v er, appea rs to have aff ecte d the outcome of the district court proce eding s and the fairne ss, integ rity , or public reputa tion of the proce eding s. The court invited counsel “to speak to the Court reg arding an appropr iate sentenc e,” and then told counsel “to bring to the Court’s attention any 3553(a) fac tors that counsel beli ev es wo u l d war

rant a sentenc e above or below the g uidelines in this case .” After hear ing the attorney s’ arg uments, the court discussed sever al § 3553(a) fac tors individually , including the need - 8 -No. 07-5845

USA v. H arris
for specific and g ener al deter ren ce an d Harris’s history and char acte ristics. I t then stated that it decide d Harris’s sentenc e “by taking into acc ount all the fac tors in Section 3553(a) , the fac ts and circ umstances of this case , and [Harris’s] unique persona l ci rc umstances and backg round.” The court further noted that, even “i f [ i t ] h ad decide d the 5K motion differ ently or if the Court had decide d that the g uideline rang e was differ ent, the Court still would have rea ched the [s ame] conclusion” reg ardin g Har ris’s sentenc e. The court’s consideration of the § 3553(a) fac tors thus qualifies as pla in error
. See M arcus , 130 S. Ct . at 2164.
3. Unre asonable Weight to the 100:1 Ratio Returning to his critique of the 100:1 ratio, Har ris also faults the district court for “plac [i ng ] an ‘unreasona

ble amount of weight’ on the di scre dited” ratio. This substanti v e-unreasona bleness challeng e fails for two rea sons. First, the district court does not appea r to have acc orded any weig ht to the ratio in its § 3553(a) analy sis. And, second, to the extent that Har ris contends the court should have exercised its discretion under Kimbrough to rec onsider the propriety of the ratio when assessing the § 3553(a) fac tors, see Kimbrough , 552 U.S. at 104–05, we have alre ady explained that the court plainly err ed in consider ing the § 3553(a) fac tors at all.
4. Gre ater -than-N ece ssary Sentence Finally , Har

ri s at t ac ks his sentenc e as g rea ter than nece ssary to achie ve the sentenc ing purposes of 18 U.S.C. § 3553, claiming that the predic ate offe nses underly ing the pre- depar

ture life
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USA v. H arris
sentenc e all occur

red m o re t h an twenty y ear s befor e the instant offe nse and wer e rela tively small-scale distributions ; that he maintained a “relatively drug fre e” lifesty le betw ee n t h e time he committed the predicate offense s and the instant offe nse; and that 300 months eff ectively equate s to a life sente nce. But, as discussed above, in light of the mandator y minimum here , the di strict court lacked discretion to consider these extraneous circumstances when assessing the extent of Har ris’s § 3553(e) substantial assistance. See B ullard , 390 F.3d a t 416.
I I I
. For the above rea sons, we vac ate Ha rris’s sente nce a

nd rema nd for r esente ncing
.

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USA v. H arris
KA RE N NE LSO N MOORE, Circuit Judge, dissentin g. Be cause the district court’s consideration of Har

ris’s past violent conduct in its weig hing of the § 3553(a) fac tors did not aff ect Har ris’s substantial rig hts, I respe ctfully dis s en t
. When the district court sentenc es a defe ndant below the statutory minimum pursuant to a § 3553(e) motion, its sentenc ing deter mination is limit ed to an analy sis of the defe ndant’s cooper ation and the extent that the sentenc e should be reduc ed based on the context surrounding eac h case . See United States v. Grant , 636 F.3d 803, 816–18 (6th Cir. 2011) (en banc) , petition for cert. filed , --- U.S.L .W.
--- (U.S. Apr. 11, 2011) (No. 10-10011). A defe ndant’s criminal history is a “conte x tual consideration[ ]” that the district court may consider when deter

mining the extent that a sentenc e should be reduc ed for the defe ndant’s assistance
. See i d

. at 817. There fore , the district court’s consideration of Har ris’s criminal history did not aff ect Har ris’s substantial rig hts and is not remediable plain err or.
I nstead of focusing on Har ris’s specific arg ument reg arding his criminal history , the majority “construe [s] Har

ris’s claim as a challeng e to the district court’s consideration of [t he § 3553(a) ] fac tors g ener ally .” Maj. Op. at 7. Th e m aj o ri ty ’s rea soning for taking this broad perspe ctive of Har ris’s claim is the g overnme nt’s acknow ledg ment that the district court should not have sentenc ed Har ris based on a § 3553(a) analy sis. The g overnme nt, howeve r, acknow ledg es that the district court should not have sentenc ed Har ris based on § 3553(a) , y et asks us to a ffirm the sentenc e. Appellee Br
. at 1 5 & n .2. I would consider only the specific claim raised by Har ris reg arding his criminal history an d wo u l d co nclude that the district court’s consideration of his criminal history is not
reme diable plain er

ror. - 11 -No. 07-5845

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For these re asons, I

respe ctfully

dissent.

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