NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0478n.06 No. 09-4083 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. CHRI STI AN PEARSON, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

BEF ORE: BA TCHEL DER, Chief Circuit J udg e; SUHRHEI NRI CH and GRI FF I

N, Circuit J udg es. GRI FF I N, Circuit J udg e. Def endant Christian Pearson appea ls the district court’s judgme nt and sentenc e. We aff irm. I

. The events g iving rise to this case beg an when a police investigation reve aled that Christian Pearson was selling narc otics in Cincinnati , Oh i o . After conducting a series of drug buy s from Pearson at and around his residenc e at 470 Day ton Street, fede ral ag ents obtained a war rant to sear ch Pearson’ s home. There, t h ey found plastic bag g ies, digital scale s, $3,445 in cash, a loaded .357

m agn u m S mith and Wesson revolve r, 2.22 g rams of marijuana , and approximately 3.7 g rams of

cra ck coca ine. Pearson was g iven Miranda war nings and admitted that he had eng ag ed in the sale of cra ck coca ine and purchas ed t h e S m i t h and Wesson revolve r for $100 for protec tion. He was indicted on six counts of traff icking in drug s and on four counts rela ted to possession of a firea rm.No. 09-4083

USA v. Christian Pearson

Pearson there afte r signe d a p l ea ag ree ment. He ag ree d to plead g uilty to Counts 8 (knowing ly possessing with the intent to distribute cra ck coca ine in a me a s urable amount in violation of 21 U.S.C. §§ 841(a) (1) and 841(b)( 1)(C)) and 9 (possession of a firea rm in further ance of the drug traff ick i n g offe nse i n violation of 18 U.S.C. § 924(c) (1)) of t he indi ctment i n exchang e for which the g overnme nt would dismi ss the rema ining counts. The gove rnment also agr eed tha t if Pearson fully cooper ated, it would rec ommend that he rec eive a term of imprisonment of 240 months. Pearson, in the plea ag ree ment, acknow ledg ed, among other things, that he “fully underst[ood] that
sentenc ing guide line stipulations and recomm endations set forth [ wer e] not binding on the C ourt, and d[i d] not include any matters reg arding his criminal history ”; he also acknow ledg ed at the plea hear ing that he had discusse d with his counsel how the Guidelines c ould apply to his case. The probation depar

tment rec ommended 262 months’ imprisonment, 202 months for Count 8 and 60 months for Count 9. The district court found that the car eer offe nder g uideline overstate d Pearson’ s criminal history and deter mined that the appropr iate criminal history score was a level VI

. The court further found that the otherwise applicable offe nse level in Count 8 was a level 24 under the Guideline’s conver sion table. I t then went on to deter mine that the 100 to 1 cra ck/powder ratio

was inappropria

te and reduc ed Pearson’ s offe nse level from 24 to 22. Finally , it reduc ed Pearson’ s offe nse level three more points for acc eptanc e of responsibility , g iving him an offe nse level of 19. The court ultimately imposed a sentenc e of 72 months’ imprisonment on eac h count, for a total of 144 months’ imprisonment, to be followed by five y ear s of supervise d rele ase. Pearson timely

appea ls.

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USA v. Christian Pearson

I I

. We “re view all sentenc es – whet h er inside, just outside, or signific antly outside the Guidelines rang e – under a defe rential abuse- of-discr etion standar d

. ” Gal l v. United States , 552 1 U.S. 38, 41 (2007). This “re asonable ness” revie w has two components: proce dural and substantive. A sentenc e may be considere d proce durally unrea sonable wher e the court fails to proper ly calc ulate the Guidelines rang e, trea ts the Guidelines as mandatory , fails to c onsider the 18 U.S.C. § 3553(a) fac tors, selec ts a sentenc e based on an unrea sonable deter mination of the fac ts, or fails to adequately explain the sentenc e. United States v. Battaglia , 624 F.3d 348, 350-51 (6th Cir. 2010). A sentenc e may be considere d substantively unrea sonable if the district court “sele ct s a s en t ence arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider r eleva nt sentencing

fac tors, or gives

an unrea sonable amount of weig ht to any pertinent fac tor.” United States v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008). I I I

. Pearson argues that the district court abused its discretion beca use: (a) it adopted the finding s

The gove rnment arg ues t hat we should revie w P ear son’s sent en ce fo r plain err or because 1 Pearson did not raise any of his sentenc ing objections in response to the district court’s United States v. Bost i c , 3 7 1 F. 3 d 865 (6th Cir. 2004), question. Id. at 872 (explaining that “district courts

. . . [m ust] ask t he parties whether they have a ny objections to the s entenc e jus t pronounce d that have not previously been raised” ). But it is not clea r that the district court asked the Bostic question. All it said was: “I

think y ou want to say

something to me, Christi an . . . . What do y ou have to say ? ” Cf. United States v. T

homas , 498 F.3d 336, 340 ( 6th Cir. 2007) (conc luding that the que stion “Do y ou have any

thing further for t he rec ord, Mr. Canady ? ” failed to satisfy Bostic ); United States v. Clark , 469 F.3d 568, 570 (6th Cir. 2006) (conc luding that the question “Any thing else, Ms. Goode? ” failed to satisfy Bostic ). We need not decide the question, howeve r, beca use we aff

irm even under the less def

ere ntial standard of

revie w. - 3 -No. 09-4083

USA v. Christian Pearson

of the prese ntence report (“PSR”) that included conduct underly ing the dismiss ed char g es to deter mine his offe nse level; (b) it used an uncounsele d misdemeanor to add one point to his criminal history total; (c) it failed to consolidate two of hi s prior convic tions for the purpose of calculating his criminal history ; and (d) it fa i l ed t o find his g uilty plea involuntary afte r he voiced confusion about the court’s use of conduct underly ing the dismiss ed char g es in deter mining his sentenc e. We addre ss these cla ims in t urn. A. First, Pearson contends that the district court’s consideration of the conduct underly ing the dismiss ed char g es to incre ase his offe nse level violated his rig hts under the Six th Amendment. That is not so. I n United States v. W hite , 551 F.3d 381 ( 6th Cir. 2008), we explained that “[s] o long a s the defe ndant rec eives a sentenc e at or below the statutory ceiling set by the jury ’s verdic t , the district court does not abridg e the defe ndant’s rig ht to a jury trial by looking to other fac ts, including acquitted conduct, when selec ting a sentenc e within that statutory rang e.” Id. at 385; cf. also United States v. Conway , 513 F.3d 640, 646 (6th Cir. 2008) (conc luding that “a defe ndant who enter s a plea ag ree ment like this one waives any constitutional rig ht to a jury deter mination of g uilt or sentenc ing fac ts – so long as the ultimate sentenc e falls within the statutory rang e.”)

. Acc ording ly , Pearson’ s 2

See also U.S.S.G. § 6B1.2( a) ( “[A] pl ea a g ree ment that includes the dismiss al of a char g e 2 or a plea ag ree ment not to pursue a potential char g e shall not prec lude the conduct underly ing such char g e from being considere d under t h e p ro v isions of § 1B1.3 (Releva nt Conduct) in connec tion with the count(s) of which the defe ndant is convicted.” ); id

. § 5K2.21 (“The court may depar t upwar d to ref

lect the actua l seriousness of the o ff en s e based on conduct

. . . underly ing a char g e dismiss ed as part of a plea ag ree ment in the case , or underly ing a potential char g e not pursued in the case as par

t of a plea ag ree ment or for

any other re ason . . .”)

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argument is without m erit. Second, Pearson claims that the district court’s considera tion of the conduct underly ing the dismiss ed char ges “d i d not comply with the spirit of the plea ag ree ment” beca use “[t] he plea ag ree ment does not list any quantity of drug s . . . . [and] the statement of f acts attache d to the plea ag ree ment . . . states only the 3.71 g rams of c rac k coca ine[,] . . . .” Tha t arg ument also fails. I n Conway , a de f

e ndant simil arly claimed that “[e]ven if the sentenc e complied with the letter of t he plea ag ree ment, . . . it did not comply with the spirit of the ag ree ment. How after all did he benef it from the ag ree ment

. . . if one of the counts dropped in return for his g uilty plea beca me the

source of an enhanc ement? ” 513 F.3d at 644. We explained, howeve r, that “[t] he best place to look for the spirit of an ag ree ment

. . . is not at what it might have s aid but at what it di d say ” – that is, “[i] t bars the g overnme nt from seeking to convict him on any of the three dismiss ed counts, not from using the conduct unde rly ing those counts to increa se his sentenc e.” Id. The same rea soning applies here

. What matters most for purposes of asce rtaining the “spirit” of a plea ag ree ment is not what the plea ag ree ment might have said, but what the plea ag ree ment did say . I n this case, the ple a ag ree ment provided that the g overnme nt would dr op the rema ining four
counts and “re commend to the court that the defe ndant rec eive a term of imprisonment of twenty (20) y ear s.” The plea ag ree ment did not contain any promise by the g overnme nt that it would ref rain from asking the district court to incre as e P ea rs o n’s sentenc e based on the conduct underly ing the dismiss ed char g es. Thus, the district court’s consideration of that conduct was not ag ainst the spirit of the plea

ag ree ment.

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USA v. Christian Pearson

T h i rd , P ear son notes that “[t] he dis trict court based i ts drug -quantity deter mination on the prese ntence repor

t” and he asser

ts that “[t] here does not appea r to be any testimonial evidenc e in the

rec ord reg arding the quantities of drug s used in the calc ulations in the prese ntence rep o rt

. ” W e g ener ously construe this as an argument that the district court did not have a su ff i ci en t b as i s for finding by a preponde ranc e of the evidenc e the amount of drug s involved in the conduct underlying the dismissed charg es. Under Fe dera l Rule of Criminal Procedur e 32(i)(3) (B ), “the district court at sentenc ing [m ust] rule on any disputed portion of the prese ntence repor t or other controve rted matter.” United States v. W

hite , 492 F.3d 380, 415 (6th Cir. 2007) (interna l quotation marks and citation omitted). This means that “if the defe ndant raises a dispute to the prese ntence repor t, the ‘cour

t may not mere ly summarily adopt t he factual findings i n the present en ce re p o rt or si mply decla re that the facts are supported by a preponde ranc e of the evidenc e.’” United States v. Ross , 502 F.3d 521, 531 (6th Cir. 2007) (interna l quotation marks and citation omitted). Rather, “the district court must actually find facts , and it must do so by a preponde ranc e of the evidenc e.” W hite , 492 F.3d at 416. “We require this literal compliance with Rule 32(i)(3) (B ) beca use it ‘enha

nc[es] the acc urac y of the sentenc e and the clar ity of the re cord.’ ” Ross , 502 F.3d at 531 (citation and interna l quotation marks omitted). I f the fa cts are not in dispute, howeve r, the district cour t may rely on drug quantities listed in the PSR

. Ross , 502 F.3d at 531. Our de cision in United States v. Treadway , 328 F.3d 878 ( 6th Cir. 2003) provides a useful example. There , the “district cour t relied ex clusively and entirely on the PSR in sentenc ing Trea dway .” Id. at 886. Trea dway appea led, arguing that this was err or. We

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held that the district court “prope rly rel[ied] exclusively on the PSR for drug quantity ” beca use Trea dway “neve r objected, o ra l l y or in writing , to the drug quantity calc ulations contained in the PSR .” Id. We expl ained that there was “no rea son to r equire a district c ourt to make indepe ndent finding s outs i d e the PSR when the fac ts are undisputed.” Id. Such is the case here

. Be cause Pearso n n ev er o b

j ected to the quantity of drug s in the PSR , the district court did not abuse its discretion in re ly ing on those undisputed quantities to determine his sentenc e. Four th, Pearson asser

ts that “including the dismiss ed char g es rende red his sentenc e ‘g reater than nece ssary ’ to acc omplish the sentenc ing g oals identified by Congr ess in 18 U.S.C. § 3553(a) ” and thus “substantively unrea sonable.” Howeve r, a proper ly calc ulated w it hin-Guidelines sentenc e, like Pearson’ s, will be aff

orded a rebuttable presumption of rea sonablene ss on appea l. Rita v. United States , 551 U.S. 338, 350-52 (2007). Pearson has not attempted to r ebut that presumption, and we conclude that the sentenc e was rea sonable. Cf., e.g., United States v. Penne y , 576 F.3d 297, 317 (6th Cir. 2009) (“Penne y does not provide us with any rea son to doubt the presumption, and we conclude that the district court’s sentenc e was rea sonable.” ); see also United States v. Liou , 491 F.3d 334, 339 n.3 (6th Cir. 2007) (“When the appellant challeng es a within-Guidelines sentenc e, it must, of course , prese nt persua sive arguments that the district court err ed in its sentenc ing deter mination, just as any burden- bear ing a

ppellant must.”). B. Next, Pearson arg

ues that the “Sentenc ing J udg e err ed when it adopted the criminal history finding s of the prese ntence repor t which used an uncounsele d misdemeanor to add one point to Mr.

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Pearson’ s criminal history total.” This argument is without merit. “The Supreme Court has direc tly addre ssed t h i s i s s u e in the Sentencing Guidelines context, noting that it is ‘constitutionally permissible to consider a prior uncounsele d misdemeanor conviction’ in enhanc ing a defe ndant’s criminal history .” United States v. Duc kro , 466 F.3d 438, 448 (6th Cir. 2006) (quoting Nichols v. United States , 511 U.S. 738, 748 (1994)). C. Pearson also contends that the “Sentenc ing J udg e err ed when it adopted the criminal history finding s of the prese ntence repor t which used separ ate d convictions [for resisting arr est and traff icking in coca ine] that should have been consolidated to add additional points to Mr. Pearson’ s criminal history .” We disag ree . Under U.S.S.G. § 4A1.2(a )(2) , “[i] f there is no intervening arr est, prior sentenc es are counted separ ately unless (A) the sentenc es resulted from offe nses contained in the same char g ing instrument; or (B ) the sentenc es wer e imposed on the same day .” Her e, the crimes of resisting arr est and traff icking in coca ine wer e not se parated by an intervening arr est; they wer e ch arge d separ ately ; and Pearson was sentenc ed for the crimes on differ ent day s (8-25-0 5 an d 10-27-05)

. Thus, the di strict court corre ctly declin ed to consolidate the convictions for purposes

3 of ca lculating Pearson’ s criminal history

. D. Fi n ally , Pearson arg ues t hat hi s g uilty plea was involuntary beca use he did not understand

Dkt #0 4-CRB-34170 includes two char g es: (1) obstructing officia l business, and (2) 3 resisting arr est. Be cause it does not aff ect the analy sis, and beca

use it is more convenie nt, we ref er to them collectively

as “r esisting a

rre st.” - 8 -No. 09-4083

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that the district court could consider the drug quantities in the dismiss ed char g es as rele vant conduct for purposes of imposing a sentenc e. I n acc epting Pearson’ s plea, the district court was require d to “ver ify that [hi s] plea [was] voluntary and that [P ear son understood] his

. . . applicable constitutional rig hts, the nature of the crime char g ed, the conseque nces of the g uilty plea, and the fac tual basis for concluding that [he] committed the crime c harg ed.” United States v. W ebb , 403 F.3d 373, 378-79 (6th Cir. 2005); see Fe d. R. Crim. P. 11. Be cause Bostic applies to sentenc ing o bjections, and beca use Pearson waited until this appea l to asser t his c laim, he must show plain err or: “(1) that an

err or occur

red in the district court; (2) that the err or was plain, i.e. , obvious or clea r; (3) that the err or aff ecte d [hi s] substantial rig hts; and (4) that this adver se impact seriously aff ecte d the fairne ss, integ rity or public reputa tion of the judicial proce eding s.” United States v. Alexande r , 543 F.3d 819, 822 (6th Cir. 2008) (c itation and internal quotation marks omitted). Pearson has not shown err or, let alone err or that was plain. I n United States v. Turpin , 155 F. App’x 887 (6th Cir. 2005), we reje cted a near ly identical argument. There , a defe ndant asser ted that she could not understand “the conseque nces of the g uilty plea” beca use “her previous attorney [] [m isstated]

. . . estimate[s] of [her] criminal history cate g ory .” Id. at 890. The c laim was t hat her “choic e betwee n a plea and trial [could] n o t [have been] knowing ly and voluntarily made wher e [she] [di d] not have proper

information re g arding her pote ntial sentence .” Id. at 891 (interna l quotation

m ar k s , citation, and emphasis omitted). We explained, howeve r, t hat t he “flaw” in this argument

was that she “in fac t had the proper information reg arding her potential sentenc e.” Id. Be cause the plea ag ree ment “stated the maxi mum penalty ,” and made clea r that “the parties had not ag ree d to a

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criminal history cate g ory ” and that “De fenda nt’s counsel’s [sentencing ] rec ommendations wer e not a guar antee [t hat t he court would impose a particular se ntence ],” we concluded t hat Turpin’s plea was volunt ary beca

use she “wa s well aware of t he potential sentenc e, even i f she is unhappy with the ac tual sentenc e.” Id. This case is substantially

the same. H ere , the record shows that Pearson knew the char g es to which he was pleading g uilty , knew that he fac ed the possibili ty of a life sentenc e, and knew that there was no g uara

ntee as to what sentenc e (other than above the minimum and not death) the district court would impose. Pear son signe d a plea ag ree ment stating: 1. The defe ndant wi l l enter a plea of g uilty to Counts Eig ht and Nine of the I ndictment. Count Eig ht char g es the defe ndant with knowing ly possessing with the intent to distribute cra ck cocaine in a measurable amount in violation of 21 U.S.C. § 841(a) (1) and 841(b)( l)(C). This offense carries a maximum penalty of up to twenty ( 20) years imprisonment , a fine of up to $1,000,000.00, a three (3) y ear term of supervised rele ase, forf

eiture and a $100.00 specia l assessment. Count Nine char g es the defe ndant with possessio n of a firea rm in further ance of the drug traff icking offe nse in violation of 18 U.S.C. § 924(c) (1). Count Nine carries a potential penalty o f a ma n datory minimum of five ( 5) years with a potential sentenc e of l i f e imprisonment that must be serve d consec utive to any other sente nce imposed upon the defe ndant, a fine of up to $250,000.00 dollars, a five (5) y ear term of supervised rele ase, a nd a $100.00 dollar spe cial asse ssment.

*** 3. T he defe ndant understands that the United States Sentencing Guidelines (‘U.S.S.G.’ or ‘F eder al Sentencing Guidelines’) are advisory and n o t m andator y . There fore , eve n th o u g h the Court is required to consider the Fede ral Sentenc ing Guidelines and their application to this case in imposing sentenc e, sentenc ing is withi n the discretion of the Court, and the defendant understands that the Court may or may not choose to impose a sentenc e based on the appl i ca b l e s en tencing range under the Fede ral Sentenc ing Guidelines for the offense charged in the Indictme nt. The defendant has thoroughly revie wed with his attorney h o w th e F e d e r a l Sentenc ing Guidelines might apply to this case. - 10 -No. 09-4083

USA v. Christian Pearson

*** 13. The d

efendant fully understands that sentenc ing guideline stipulat ions and recom mendations set forth are not binding on the Court, and do n o t include any matters regarding his criminal history category which will be determine d b y the Court aft er a pre- sentenc e inve stigati on. (Emphase s added.) Fur

ther, at the plea hear ing, Pearson acknow ledg ed that he had discussed with h i s co unsel how the Guidelines could apply to his case . Be cause Pearson was well aware o f h i s potential sentenc e, his argument that he could not understand the conseque nces of his g uilty plea is without merit. 4 I V. For these re asons, we a ffirm.

To the extent that Pearson mentions an ineffe ctive assistance of counsel claim to “pre serve 4 any issues reg arding of [si c] ineffe ctiveness of counsel reg arding his lack of understanding rela ting to dismiss ed char g es being used to incre ase his sentenc e,” that claim is not proper ly befor e the court beca use Pearson has not argued it, see El-Moussa v. Holder , 569 F.3d 250, 257 (6th Cir. 2009), and beca use t he record is not sufficie nt l y develope d, see Massaro v. United States , 538 U.S. 500, 508 (2003); United States v. Shabazz , 263 F.3d 603, 612 ( 6th Cir. 2001). - 11 -