NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0050n.06
No. 12-5321
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. MI CHAEL

TODD SI MS, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF TEN

NESSEE

BEF ORE: BATCHEL DER, Chief J udg e; MERRI TT and KE THL EDGE, Circuit Judges.

PER CURI AM. Michae l Todd Sims , a veter an of th e I ra q W ar, appea ls the 120-month

sen t en ce for his methamphetamine conspirac y offe nse, asser ting that the mandatory minimum
sentenc e is unconstitutional as applied to combat ve tera ns. We affirm Sims’s sentence

. Pursuant to a written plea ag ree ment, Sims pleade d g uilty to conspirac y to manufa cture and distribute 50 g rams or more of actual methamphetamine or 500 g rams or more of a mix ture or substance c ontaining me thamphetamine, in violation of 21 U.S.C. §§ 841(a) (1) a nd (b)( 1)(A) and
846. Ba sed on a total offe nse level of 29 and a criminal history cate g ory of I I I , Sims ’s prese ntence
repor t c alculate d a g uidelines rang e of 108 to 135 months of imprisonment. Sims , howeve r, fac ed a mandatory minimum sentenc e of te n y ear s pursuant to 21 U.S.C. § 841(b)(1)( A), re sulting in an eff ective g uidelines rang e of 120 to 135 m o n ths of imprisonment. Sims did not dispute the
gu i d el i n es calc ulation but moved for a varia nce, asser ting that the Supreme Court in Porter v.No. 12-5321

United States v. Sims McCollum , 5 5 8 U.S. --, 130 S. Ct. 447 (2009), established a new rule of fede ral common law requiring leniency for combat veter ans and that application of the mandatory minimum sentenc e is unconstitutional as applied to combat veter ans like himse lf by depriving them of the require d leniency

. The district court, while acknow ledg ing that “we all owe y ou and ever y one else who has worn that unifor

m a g rea t debt of g ratitude that cannot be re paid,” c oncluded that it was bound by the mandator

y minimum and sente nced Sims to 120 months of im prisonment.
On appea l, Sims contends that the mandatory minimum sentence i s unconstitutional as applied to combat veter ans. Sims ’s constitutional challeng e to his sentenc e is a question of law that

we r eview de novo. See U nited States v. Kelsor , 665 F.3d 684, 701 ( 6th Cir. 2011). Contrary to Sims ’s arg ument, the S upreme Court in Porter di d n o t est ablish a new rule of fede ral common law. I n Porter , a death penalty case , the Supreme Court held t h at “it was objectively unrea sonable to conclude there was no rea sonable probability the sentenc e would have been differ ent if the sentenc ing judge and jury had h ea rd t h e signific ant mitigation evidenc e that
Porter’s counsel neither uncover ed nor prese nted,” including “(1) Porter’s heroic milit ary service in
two of the most critica l—and horrific —battles of the Kore an W ar , (2 ) his strug g les to reg ain normality upon his return from war , (3) his childhood history of phy sical ab u s e, and (4) his brain abnorma lity , difficulty rea ding and writing , and limit ed schooling .” 558 U.S. a t - -, --,130 S. Ct. at 448, 454. I n rea ching this conclusion, the Supreme Court held that the Florida courts unrea sonably discounted Porter’s milit ary service , stating: “Our Nation has a long tradition of acc ording leniency
to veter ans in rec og nition of their service , espec ially for those who foug ht on the front lines as Porter did.” Id

. at --, 130 S. Ct. at 455. This observa tion did not amount to one of the “fe w and restric ted” -2-No. 12-5321

United States v. Sims instances wher e the Supreme Court has cre ated fede ral common law, W heeldin v. W

heele r , 373 U.S. 647, 651 (1963); rathe r, the Supreme Court mere ly acknow ledg ed that a defe ndant’s milit ary service has historically been viewed as a mitigating fac tor at sentenc ing, see USSG App. C, Vol. I I I , at 350-
51 (Nov. 1, 2011) (re ading Porter as rec og nizi ng that milit ary s ervic e is “a traditional mitigating fac tor at sentenc ing” ). I n rec og nizi ng that veter ans have traditionally bee n aff orded leniency , the Supreme Court did not require leniency , much less as a matter of f

eder al common law.
Even if Porter could be rea d as announcing a new rule of fede ral common l aw reg arding leniency for combat veter ans, t h e district court would still have been require d to impose the mandatory minimum sentenc e set by Congr ess in 21 U. S

. C. § 841(b)( 1)(A)

. “[C] ong ressional leg islation excludes the decla ration of fede ral common law” wher e “the statute speaks direc tly to the
q u es tion at issue.” Am. Elec. Power Co. v. Connecticut , 131 S. Ct. 2527, 2537 (2011) (interna l quotation marks and brac kets omitted); see also Mertens v. Hewitt Assocs ., 508 U.S. 248, 259 (1993) (stating that the authority to de velop fe dera l common la w does not inc lude “the authority to r evise the text of the statute”). Her e, Congr ess has spoken direc tly to the issue by acting within its authority
to establish mandatory minimum sentenc es for cer tain drug offe nses. See United States v. Odene al , 517 F.3d 406, 414 (6th Cir. 2008). The d i s t ri ct co u rt could not disreg ard the minimum sentenc e statutorily mandated by Congr ess for Sims ’s drug offe nse. See United States v. Cecil , 615 F.3d 678, 695-96 (6th Cir. 2010).
Acc ording ly , we a ffirm Sims’s 120-month sentence

.

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