NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0824n.06 Nos. 10-6280, 10-6281, 10- 6287, 10-6320, and 10-6400 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. TONY McAL L I STER, CHA RL ES PATTERSON, STANL EY HUGHE S, STACEY RATCL I FF , and J ESSI CA WEEKS-SAVAGE Def endants-A

ppellants. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE EASTE RN DI STRI CT OF TENNESSEE

Be fore : MOORE, GI BB ONS, and AL ARCÓN, Circuit J udg es *

AL ARCÓN, Circuit J udg e. Def endants-a ppellants Tony M cAlli ster, Charles Patterson, Stanley Hug hes, Stacey Ratcliff, and J essica Weeks-Savag e appea l f r o m th e d is tric t c o u

r t’ s judgme nt sentenc ing them to various terms of imprisonment for conspi ra cy wi t h intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) and (b)( 1)(A)

. Patterson and Ratcliff contend 1

The Honora

ble Arthur L

. Alarc ón, Senior C i rc u i t J u d g e for the United States Court of * Appea ls for the Ninth Circuit, sitting by desig nation. On April 27, 2011, this Court consolidated for briefing case numbers 10-6278, 10-6280, 10- 1 6281, 10-6287, 10-6320, and 10-6400. Given that some of the p ar t i es ra i s e the same issues on appea l, we have issued this consolidated dispositi on for the case numbers listed a bove. We issued the disposition for case number 10-6278 se parately

.No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage that the distric t co u rt err ed when it applied dang erous wea pon enhanc ements to their sentenc es, pursuant to Section 2D1.1(b) (1 ) o f the Sentencing Guidelines, beca use there was insufficient evidenc e connec ting the firea rm found in their bedroom wi t h t heir drug traff icking offe nses. Weeks-Savage contends that the district court err ed by adding two criminal history points for her six ty -day sentenc e for violating the conditions of probation on a 2004 Geor g ia state obstruction conviction beca

use she was not repr esente d by counsel at the probation revoc ation hear ing. Hug hes and McAllister contend that the district court err ed by imposing sentenc es that are proce durally and substantively unrea sonable. For the rea sons that follow, we aff irm the district court as to McAllister, Patterson, Ratcliff, and Weeks-Savag e. As for Hug hes, we vacate his sentenc e and rema nd for resentenc ing.

I

.
I n 2003, law enfor ceme nt office rs beg an inv es t i gati ng a methamphetamine conspirac y in Tenne ssee and Geor g ia. Offic ers lear ned that McAllister, Patterson, Hug hes, Ratcliff, and WeeksSavag e wer e involved in the methamphetamine conspirac y . They later admitted to participa ting in the conspirac y and pleade d g uilty to conspirac y with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) and (b)( 1)(A)

. They raised sever al different objections at their sentenc ing hear ings, which the district court overr uled. We addre ss eac h appellant’ s arg uments on appea l in turn.

- 2 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage I I

.
A. Tony McAllister
McAllister contends that the district court err ed beca use his sentenc e was proce durally and substantively unrea sonable. We “re view a district court’s sentenc ing decisions ‘under a defe rential abuse- of-discr etion standard’ ” fo r proce dural and substantive rea sonablene ss. United States v. Bake r , 559 F.3d 443, 448 (6th Cir. 2009) (quoting Gall v

. United States , 552 U.S. 38, 41 ( 2007)). We revie w a d i s t ri ct court’s interpreta tion of t he S entenc ing Guidelines de novo and it s “finding s of fa ct at sente ncingfor c lear err or.” Id.

1.
McAll i s t er contends that his sentenc e was proce durally unrea sonable beca use the district court: (1) failed to explain adequately the basis for its decision; (2) relied on err oneous fac ts or fac ts not in evidence ; and (3) tr eate d the Guidelines a s presumptively rea sonable. We disag ree .

a.
McAllister has not established that the district court failed to explain adequately the basis for its decision. “A district court must explain the sentenc e it has chosen, but it is well-settled that it is not require d to respond to ever y arg ument raised by the defe ndant.” United States v. Judge , 649 F.3d

- 3 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage 453, 457 (6th Cir. 2011). A court’s failure to discuss an arg ument does not nec essar ily mean that the court ignor ed the argum ent. United States v. Simmons , 501 F.3d 620, 626 (6th Cir. 2007) [hereinaf ter Simmons I

]. “The level of detail require d in the court’s explanation will vary from case to case , and the underlying inquiry is ‘whe ther the rec ord makes clea r that the sentenc ing judge listened to e ach argument, considere d the supporting evidenc e, wa s fully awa re of the def endant’ s circ umstances[,] and took them into acc ount in sentenc ing him.’” Judge , 649 F.3d at 458 (alter ation in original) (quoting United States v. Vonner , 516 F.3d 382, 387 (6th Cir. 2008) (en banc) ). A “within-Guidelines sentenc e[ ] n ee d n o t be explained with the same level of detail as [a] nonGuidelines sentenc e[] .” Id.
The district court acknow ledg ed and reje cted McAllister’s argument that the Guidelines for methamphetamine offe nses conflict with the sentenc ing g oals of 18 U.S.C. § 3553(a)

. The district court explained that the Guidelines for methamphetamine offe nses ref lect Congr ess’s judgme nt, as adopted by the Sentencing Commi ssion, that methamphetamine offe nses require stiff punishment.

I n reject ing McAllister’s arg ument that he is “outside t he heartland” of m ethamphetamine

case s, the district court explained that McAllister’s situation is “ty pical; it is not a

ty pical” beca

use many first-time offe nders have “g ood work histories” and “supportive families, but be cause of the addictive nature of methamphetamine, all those things become seconda ry when t h ey become involved . . . in criminal ac tiviti es.” R. 629 at 118- 19.

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United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage The district court acknow ledg ed and reje cted his argument that a sentenc e of home detention

or time serve d was appropr iate. The distri ct court explained that Congr ess has “dete rmined that people such as Mr. McAlister [si c] should rec eive punishment g rea ter than home d etention and probation for their activities.” Id. at 122. I t stated that i t did not “think any one can say that Congr ess’s judgme nt was misplaced there .” Id. at 123. The dist ri ct court conclude d that the Guidelines ref

lect Congr ess’s judgme nt that methamphetamine offe nders should “re ceive a period of incar ceration as opposed to home detention or probation or time serve d.” Id. ; see generally Kimbrough v. United States , 552 U.S. 85, 108-09 (2007) (explaining that Congr ess established the Commi ssion to formulate national sentenc ing standards beca use the Commi ssion “has the capa city courts lac k” to ana ly

ze appropriate sentenc ing sta ndards)

. The district court was not req u i re d to explain why the article s and studies reg arding

rec idivism that McAll i s t er at t ache d to his sentenc ing memorandum wer e not persua sive. These article s, while potent i al l y instructive, are not binding prec edent. Moreove r, McAllister has not established that the district court ignor ed or failed to consider these materia ls. See Simmons I , 501 F.3d at 626 (“L ack of

discussion will not mean that the district c ourt ig nored the fac tor.”).
b. Despite his contentions to the contra ry , McAllister has not established that the district court made clea rly err oneous fac tual finding s or relied on evidenc e outside the rec ord. A fac tual finding is clea rly err oneous “‘w hen, althoug h there may be some evidenc e to s u p p o rt t h e finding , the

- 5 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage revie wing court on the entire evidenc e is left with the definite and firm conviction that a mistake has been committed.’” United States v. Darwich , 337 F.3d 645, 663 (6th Cir. 2003) (qu o t i n g Un ited States v. L atouf

, 132 F.3d 320, 331 (6th Cir. 1997)). “ As long as the dist rict court has i nterpre ted the evidence in a manner consist ent wit h the record, ‘the court of appea ls may not rev er s e i t ev en though convince d that had i t b ee n s i t t i n g as the trier of fac t, it would have weig hed the evidenc e d i ff er en tly .’” Regalado v. United St ates , 334 F.3d 520, 524 (6th Cir. 2003) (quoting Anderson v. City of Bessemer , 470 U.S. 564, 574 (1985)).

M c A ll is te r also has not established that the district court’s discussion of Co n g r e s s ’ s ju d g me n t

was a clearl y er roneous fac tual finding

. Moreove r, McAllister has not explained why his mere disag ree ment with Cong ress’s judgme nt should leave us with the definite and firm conviction that a mistake ha s been c ommitt ed. Despite McAllister’s contentions to the contra ry , he has not established that the district court made a fac tual finding that McAllister caused s pecif ic social harms. The rec ord shows that the district court discussed social harms cause d by methamphetamine offe nders, like McAllister, in the context of its explanation of Congr ess’s j u dg ment that methamphetamine offe nders should be incar cer ated. To rea d the district court’s explanation as a fa ctual finding that McAllister cause d specific social har

ms would ignore the context of the court’ s discussion.

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United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage
c.
McAllister has not established that the district court trea ted the Guidelines as presumptively

re asonable

. I n United States v. Booke r , 543 U.S. 220 (2005), the Supreme Court hel d t h at t h e Sentencing Gu i d el i n es are “ef fec tively advisory .” Id. at 245. Stil l, “district courts must trea t the Guidelines as the ‘starting point and the initial benchma rk.’” Kimbrough , 552 U.S. at 108 (quoting Gall , 552 U.S. at 49.

Her e, the rec ord shows that the di strict cou rt re co gnized that the Guidelines wer e “merely advisory and they are not binding on the Court.” R. 629 a t 11. The district court e x plained that it “is require d to consult the [G] uidelines

. . . as well as t h e s en t en cing fac tors stated in 18 U.S.C. S ec t i o n 3553(a) .” Id. The rec ord also shows that, at McAllister’s reque st, the district court exercised its independe nt discretion and declined to follow the Guidelines’ rec ommendation ag ainst considering a defe ndant’s persona l char acte ristics. I n doing so, the district court was not trea ting the Guidelines as pr esumptively rea sonable.

2.
McAllister contends that his sentenc e is substantive ly unrea sonable beca use the district court failed to consider and weig h eac h of the sentenc ing g oals identified in 18 U. S

. C. § 3553(a)

. “A sentenc e may be considered substantively unrea sonable when the district court selec ts a sentenc e arbitra rily , . . . fa i l s t o consider rele vant sentenc ing fac tors, or g ives an unrea sonable amount of weig ht to any pertinent fac tor.” United States v. Conatser , 514 F.3d 508, 520 (6th Cir. 2008). “The - 7 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage sentenc ing judge may not pr esume that the g uidelines rang e is r easona ble, but must consider all of the rele vant § 3553(a) fac tors and impose a sentenc e that is ‘suffic ient but not g rea ter than nece ssary ’ to comply with the purposes of § 3553(a) (2).” Id. (citing United States v. Foreman , 436 F.3d 638, 644 n.1 (6th Cir. 2006)). “A proper ly calc ulated within-g u i delines sentenc e will be aff orded a rebuttable presumption of rea sonablene ss on appea l.” Id. (citing United States v. W illiams , 436 F.3d 706, 708 (6th Cir. 2006)).
McAllister has not demonstrated that his sentenc e wa s s ubstantively unrea sonable. McAllister does not point to any portion of the rec ord that shows the district court arbitra rily selec ted his sentenc e, failed to consider rele vant § 3553 (a ) fa ctors, or improperly weig hed such fac tors. I ndeed, the re co rd s h ows that the di strict court addressed the rele vant § 3553(a) fac tors, g rouping them into four c a

te g o r ie s : r e trib uti o n ; g e nera l deter renc e; specific deter

renc e; and reha

bilitation. The district court explai n ed t h at, beca use McAllister was in criminal history cate g ory I , specific deter renc e and reha

bilitation were not a “ high pr iority ” in his case . R. 629 at 116-17. McAllister has not pointed to any portion of t he re cord nor cited binding authority

sug g esting that the district court’s tre atment of these fac tors was inappr opriate.
Other t h an d isag ree ing with the district court’s analy sis, McAllister has not provided any
rea son to conclude that the district court abused its discretion. McAllister’s dissatisfaction with the sentenc ing court’s decision is not a proper g rounds for reve rsing his sentenc e. See United States v. Jack son , 466 F.3d 537, 540 (6th Cir

. 2 0 0 6 ) (“I t appea rs that J ackson is simply unhappy with his sentenc e [of 72 months in prison], despite the fac t that it is lower than the statutory maxi mum (120 - 8 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage

m o n t hs) and the applicable Guidelines rang e (84-105 months).”). I n sum, McAllister h as n o t established that the district cour t erre d.

B.
Charles Patterson a

nd Stacey Ratcliff

Patterson and Ratcliff contend that the d i s t rict court err ed by applying the Section 2D1.1(b)( 1) dang erous wea pon enhanc ement beca

use there was insufficient eviden ce
connec ting the firea

rm found in their bedroom with their drug traff icking off en s e. W e re view a district court’s interpre tation of the Sentencing Gu i delines de novo and its “finding s of fac t at sentenc ing f

or cle ar e rror .” Bake r , 559 F.3d at 448.

Pursuant to Section 2D1.1(b)( 1), a two-leve l enhanc ement should be added to a defe ndant’s base offe nse level “[i] f a dang erous wea pon (including a firea

rm) was possessed.” U.S. Sentencing Guidelines Manual § 2D1.1(b)( 1) [hereinaf ter Sentencing Guidelines]. “ The enhanc ement should be applied if the wea

pon was prese nt, unless it is clea rly improbable that the wea pon was connec ted with the offe nse.” Id. § 2D1.1 cmt. n.3(A)

. Under Section 2D1.1(b)( 1), the g overnme nt has the burden of showing “by a preponde ranc e of t he evidence that ‘(1) the defendant actually or constructively “possessed” t h e weapon, and (2) such possess i o n was during the commission of the offe nse.’” United States v. Catalan , 499 F.3d 604, 606 (6th Cir. 2007) (quoting United States v. Hill , 79 F.3d 1477, 1485 (6th Cir. 1996)). This
- 9 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage Court has previously rec og nized that the 1991 amendments to the Sentencing Guidelines remove d the require ment that the wea pon be possessed during the commission of the crime
. United States v. F a ison , 339 F.3d 518, 520 (6th Cir. 2003). “[A]l l that the g overnme nt need sho w i s t h at t h e dang erous we apon [was] possessed during ‘re levant conduc t.’” Id.
This Court has also rec og nized that althoug h the Gover nment’s burden co n t ains “two separ ate inquiries, in most instances they collapse into a s i n gl e fa ctual deter mination beca

use the

wea pon was prese nt when the arr est took place or wher e the crime was committed.” United States v. Sanchez , 928 F.2d 1450, 1460 (6th Cir. 1991), abrogated on other grounds b y Un i t ed S tates v. Jack son-Randolph , 282 F.3d 369 (6th Cir. 2002)

. I n such “instance s, once the g overnme nt proves a def endant wa s in possession of a wea pon, its burden is satisfied.” Id.

Once the Gover

nment meets its burden, “a [rebuttable] presumption arises that ‘the wea pon
was connec ted to the offe nse.’” United States v. W h ea t o n , 517 F.3d 350, 367 (6th Cir. 2008) (quoting United States v. Hough , 276 F.3d 884, 894 (6th Cir. 2002)). The burden then “shifts to the defe ndant to show that it was ‘cle arly improbable’ that the wea pon was connec ted to the offe nse.” Catalan , 499 F.3d at 606. A defe ndant must prese nt evidenc e, not mere argument, in order to meet his or her burden. See Hough , 276 F.3d at 894 (“[S] peculation is not evidenc e and does not establish that it was ‘cle arly improbable’ that [W oods] possessed the firea rms during the offe nse.”) ; see also W heaton , 517 F.3d at 368 (“The bare asser tion of Wheaton’s counsel that the g un might simply have been for the lawful purpose of defe nding the residenc e is insuff icient to sustain Wheaton’s burden of showing it was ‘cle arly improbable’ that the g un was rela ted to the drug conspirac y .”); Darwich , - 10 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage 337 F.3d at 665 (“D arw ich argues that the connec tion of the wea pons to the drug s was tenuous, but fails to show that the presumed connec tion was ‘cle arly improbable.’ Thus, the district court did not clea rly err in apply ing the two-leve l firea rm enha nceme nt.”).
This Court considers sever al fac tors, none of which is alone controlling , when deter mining whether the application of a Section 2D1.1(b) (1) e nhance ment was a ppropriate : (1) the ty pe of firea rm involved; (2) the acc essibility of the wea pon to the defe ndant; (3) the prese nce of ammunition; (4) the proxi mity of the wea pon t o i l l icit drug s, proce eds, or para

pherna lia; (5) the defe ndant’s evidenc e conce rning the use of the wea pon; and (6) whether the defe ndant was actua lly eng ag ed in drug -traf ficking , rathe r than mer e manuf

actur ing or

possession.
United States v. Edmonds , 9 F. App’x 330, 332 (6th Cir. 2001) (citing United States v. Calhoun , 49 F.3d 231, 237 (6th Cir. 1995); United States v. Chalkias , 971 F.2d 1206, 1217 (6th Cir. 1992); United States v. Mc Ghee , 882 F.2d 1095, 1099 ( 6th Cir. 1989)).

Her e, the district court did not err in concluding that th e Go v er n ment prese nted sufficie nt evidenc e to meet its burden. The sear ch of Patterson and R at cl iff’s home uncover ed a loaded shotgun in rela tively close proxi mity to drug para pherna lia during the period of the drug conspirac y . This evidenc e, combined with the fac t that Patterson and Ratcliff pleade d g uilty to drug traff icking , could rea sonably lead to the conclusion that Patterson and Ratcliff eng ag ed in drug traff icking activities at their home a

nd the shotg un was pre sent during such ac tiviti es.

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United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage As fo r t h e connec tion betwee n the wea pon and the offe nse, the evidenc e showed that (1 ) office rs found a shotgun in Patterson and Ratcliff’s home; (2) the shotgun was rela tively acc essible 2 beca use it took only moments to retrie ve; (3) the shotgun was loaded; (4) the s hotgun was in rela tively close proxi mity to drug para pherna lia, including plastic bag s wra pped in black elec trical tape, digital scale s, and a ca n nister with a false bottom that contained a plastic bag with methamphetamine residue; (5) Patterson and Ratcliff did not prese nt evidenc e that the shotgun had

a leg itimate purpose; and (6) Patterson and Ratcliff admitted, in their plea ag ree ments, that they wer e involved in methamphetamine tra fficking

. Contrary to Patter son’s contentions, dang erous we apons and drug s (or drug para pherna lia) need not be in the same location for the Section 2D1.1(b)( 1) enhanc ement to a pply

. See W

heaton , 517 F.3d at 368 (af

firming application of Sec tion 2D1.1(b)(1) enhanc ement eve n though no dr ug s
wer e found in the house wher e office rs found a g un); United States v. Bell , 346 F. App’x 46, 47-48 (6th Cir. 2009) (af

firming application of Section 2D1.1(b)( 1) enhanc em en t even though firea rms
wer e found in upstairs be droom and c ocaine , scale , and ca sh were found in baseme nt safe)

.
Patterson’s argument that the shotgun had a leg itimate purpose is not persua sive. On appea l, Patterson sug g ests that the sho t gu n co u l d h av e been used for hunting beca use it was found in his home, which is on “prime hunting land,” and was discovere d during deer hunting season. Patterson,

A shotgun is a fi re ar m associate d with drug traff icking

. See, e.g. , United States v. 2 Kimbrough , 376 F. App’x 592, 597 (6th Cir. 2010) (“K i m b ro u gh ’s loaded shotgun is ‘of a ty pe associate d with drug traff icking .’” ( quoting Calhoun , 49 F.3d at 237)).

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United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage howeve r, has not supported his argument with citation to evidenc e in the rec ord. I ndeed, Patterson cannot do so beca

use he did n o t p re s ent any evidenc e at the sentenc ing hear ing. Patterson’s argument, alone, is insufficie nt to satisfy his burden.

As the district court noted, althoug h Ratcliff’s counse l ’s cross-e x amination of Detec tive Smit h reve aled wea

knesses in his testimony , neither Ratcliff nor Patterson prese nted any evidenc e showing that it was clea

rly improbable that the s h o t gu n was connec ted to their drug offe nse and, thus, they failed to meet their burden. I f a defe ndant fails to meet his or her burden of showing that it was clea

rly improbable that a firea rm was connec ted to his or her drug offe nse, “the district court should a pply the enhanc ement.” Catalan , 499 F.3d at 606-07. Be cause Patterson and Ratcliff did not me et their burden of showing that it wa s clea rly improbable that the shotg un was c onnecte d to their offe nse, the district court did not err when it applied the Section 2D1.1(b)( 1) dang erous wea pon enhanc ement to their sente nces.
C. Stanley Hug hes

On appea l, Hug hes contends that the district court err ed beca use his sentenc e is proce durally and substantively unrea sonable. T h is Co u r t “ r e v ie w[s] a district court’s sentenc ing decision[] ‘under

a defe rential abuse- of-discr etion standard’ ” for proce dural and substantive rea sonablene ss. Bake r , 559 F.3d at 448 (quoting Gall , 552 U.S. at 41). We revie w a district court’s i n t er p re tation of the Sentencing Guidelines de novo and its “finding s of fa ct at sentenc ing for clea r err or.” Id. Hug hes - 13 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage contends that his sentenc e is proce durally unrea sonable beca use the district court fa iled to expl ain adequately

its rejection of his sente ncing disparity argument. We ag ree .
1.

As an initial matter, we conclude that Hug hes’s proce dural rea sonablene ss challeng e is subject t o plain err or review because his counsel did not ra i s e i t i n response to the di strict court’s Bostic question. I n United States v. Bostic , 371 F.3d 865 (6th Cir. 2004), this Court held that district courts are require d, “af

ter pronouncing the defe nda n t’ s s e n te n c e b u

t b e f o r e a d journing the sentenc ing hear ing, to ask the parties whether they have any objections to the sentenc e just pronounce d that have not previously been raised.” Id. at 872. “I f a party does not clea rly articula te any objection and the g rounds upon which the objection is based, when g iven t h i s fi nal opportunity to speak, then that party will have forf

eited its opportunity to make any objections not pr eviously raised and thus will fac e plain er

ror r eview on a

ppeal.” Id. at 872-73.

I n United States v. Simmons , 587 F.3d 348 (6th Cir. 2009) [hereina ft er S i mmons II ], this Court held that a defe ndant’s proce dural rea sonablene ss challe n ge to his sentenc e was subject to plain err or revie w beca

use his counsel’s response to the Bostic question was too g ener al to prese rve his proce dural objection. Id. at 357-58. I n Simmons II , the defe ndant argued at sentenc ing that a within-Guidelines sentenc e wa s i m p ro p er due to the sentenc ing disparities for cra ck and powder

coca ine offen s es . Id. at 353. The district court reje cted the defe ndant’s argument, imposed a

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United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage within-Guidelines sentenc e, and asked the Bostic question. Id. The defe ndant’s counsel responde d, “Your Honor, I object just for the r ecor d for the pr ocedur al, substantive aspe cts.” Id. at 353, 355.

On appea l, the defe ndant argued that the district court’s senten ce wa s p roce durally

unrea sonable beca

use the court failed to explain its reje ction of his substantive argument reg arding

cra ck and pow er c ocaine sentenc ing dispa rities. Id. at 354-55. This Court held that:

Vonner require s the application of plain-er ror r eview to pr ocedur al claims like t his one, wher e a party answe rs the Bostic question in the aff irmative, but at such a high deg ree of g ener ality that the district court has no opportunity to corr ect its purported err or and the court of appea ls has been deprive d of a more detailed rec ord to revie w.
Id. at 358.

Her e, Hug hes’s counse l ’s response to the district court’s Bostic question, like defe nse counsel’s response in Simmons , was too g ener al to prese rve his proce dural objection. After the district court announce d Hug hes’ s s en tence , it asked defe nse counsel whether Hug hes had any objections to the sentenc e that he had not previously raised. In response , Hug hes’s counsel simply stated “[w]e would just re serve objections to the sentenc e.” R. 629 a t 139. This obje ction did not raise the specific proce dural objection that Hug hes now raises on appea l; i.e., that the district court failed to e x plain adequately its re jection of his se ntencing disparity argument. By failing to do so, Hug hes deprived t he dis trict court of the opportunity to corre ct the alleg ed er

ror a nd deprive d this Court of a more detailed r ecor d to review . Thus, we r eview f or plain er

ror.

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United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage 2.

I n order to establish plain err or, a defe ndant must s h o w: “( 1 ) t h at 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 defe ndant' 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.” Bake r , 559 F.3d at 454 (quoting United States v. Koeberlein , 161 F.3d 946, 949 ( 6th Cir. 1998)).

I n order to determine if a

n err or occ urre d in the district court in this case, w e must addre ss the district court’s obligation to explain the basi s for its sentenc ing decision. In United States v. W a l l a ce , 597 F.3d 794 (6th Cir. 2010), t his Circuit held, on plain err or review, that a defen d an t ’s sentenc e was proce durally unrea sonable beca use the rec o rd fa i l ed to show that the district court considere d the defe ndant’s argument reg arding disparities betwee n her sentenc e and that of her coconspirator s. Id. at 803-08. I n doing so, this Circuit explained that “‘[w]hen a defenda nt raises a particula r[, nonfrivolous] argument in seeking a lower sentenc e, the rec ord must ref lect both that the distri ct j u d ge considere d the defe ndant’s argument and that the judge explained the basis for reje cting it.’” W

allace , 597 F.3d at 803 (quoting United States v. Gapinski , 561 F.3d 467, 474 (6th Cir. 2009)).

I n rende ring its decision, the district court stated:

Mr. Hug hes had asked the Court to i m p ose a nong uidelines sentenc e in this case . The Court has considere d his reque st, and the Court wi ll deny that reque st. The Court ha s taken into consider ation the def endant’ s background, his history , and his - 16 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage char acte ristics, as the Court is require d to do under Section 3553, an d t h e Court conclude s, primarily beca use of his criminal rec o rd , that a sentenc e outside the g uidelines would not fulfill the fac tors in Section 3553.

R. 629 at 132. The district judge “did not make even a cursor y mention of the disparity in sentenc es betwee n” Hug hes and his co-c onspirators. W allace , 597 F.3d at 803. As this Court ex p l ai n ed in W allace , “[t] he district judge ’s failure to even so much as acknow ledg e the argument constitutes an
err or that was obvious or clea r, the first two prong s of plain err or revie w.” Id. at 806. This err or also aff ecte d Hug hes’s “substantial rig ht” to meaning ful appellate revie w and the “fa irness, integ rity , or public reputa tion of proceeding s.” W allace , 597 F.3d at 807-08. We are pers u ad ed t h at we must

v acate Hug hes’s sentenc e beca use the district court failed to set forth its rea sons for reje cting his non-fr ivolous argum en t that his sentenc e reg arding the disparity betwee n his sentenc e and that pronounce d ag ainst his more culpable co-c onspirators. Be cause of this proce dural err or, we cannot deter mine at this time whether th e d i s t ri ct court’s sentenc e was substantively rea sonable. United States v. Garcia- Robles , 562 F.3d 763, 768 ( 6th Cir. 2009).

D.

J essica Wee ks-Savag e Weeks-Savag e contends that the district court err ed b y overr uling her objection to the addition of two criminal history points based on her sentenc e of six ty -day s for violating a condition of probation on a 2004 obstruction co n v i ct i o n beca use she was not repr esente d by counsel at the probation revoca t i o n hear ing. As we previously stated, we revie w a district court’s interpretation - 17 -No. 10-6280, 10-6281, 10- 6287, 10-6320, and 10- 6400

United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage of the Sentencing Guidelines de novo and its “finding s of fac t at sentenc ing for clea r err or.” Bake r , 559 F.3d at 448.

Pursuant to Section 4A1.2(d)( 2)(A) , a trial court should add two criminal history points “for

eac h adult or j uvenile sentence to confine ment of at least si x ty day s if the defen d an t wa s rele ased from such confine ment within five y ear s of his commence ment of the instant offe nse.” Sentencing Guidelines § 4A1.2(d) (2)( A). Weeks-Savag e do es not dispute that her six ty -day sentenc e for violating a condition of probation on the 2004 state obstruction conviction falls within the scope of Section 4A1.2(d)( 2)(A)

. T h e re co rd shows that she serve d a six ty -day sentenc e of confine ment and was rele ased in 2 0 0 4 , which was within five y ear s of her involvem en t in the curr ent offe nse in 2008. Rather, WeeksSavag e contends that she was denied due proce ss beca use she was not repr esente d by counsel at the probation revoc ation hear ing on the 2004 obstruction conviction nor was she advised that she could have r equeste d counsel a t that hear ing. “[A] defe ndant in a sentenc ing proce eding may not collater ally challeng e the use of prior convictions or parole revoc ations for purpose s of cr iminal hist ory calc ulation unle ss the challeng e is based upon an alleg ed violation of the rig ht to counsel.” United States v. Lalonde , 509 F.3d 750, 767 (6th Cir. 2007). A defe ndant does not have a Six th Amendment rig ht to counsel at a probation

revoc ation hear ing. See G agnon v. Scarpelli , 411 U.S. 778, 781 (1973) ( distinguishing Mem pa v. Rhay , 389 U.S. 128 (1967), by stating that its rea soning “does not require a hear ing or counsel at the
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United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage time of probation revoc ation in a case such as the prese nt one, wher e the probationer was sentenc ed at the time of trial” ).
Weeks-S avage does not argue that she had a Six th Amendment rig ht to counsel at the probation revoc ation hear ing on her 2004 state obstruction conviction. Rather, Weeks-Savag e alleg es that she had a due proce ss rig ht to counsel at the probation revocat i o n hear ing. Be cause Weeks-Savag e does not attack her six ty -day sentenc e for violating a condition of probation on the 2004 state obstruction conviction based on the Six th Amendment rig ht to counsel, she cannot collater ally attack the validity of that sentenc e in these proce eding s. See Custis v. United States , 511 U.S. 485, 496 (1994) (per mitti ng collater al attacks only for Gideo n v i o l at i ons under the Six th Amendment).
Since Weeks-Savag e cannot co l l ater ally attack her six ty -day sentenc e for violating a condition of probation on the 2004 state obstruction conviction, we need not rea ch the merits of her arguments on appea l and conc lude that the district cour t did not er

r in a dding two criminal history points for that sentenc e.
I I I

.
For th e f o r e g o in g r e a s o n s , w e a f

f ir m a s to M c A llister, Patterson, Ratcliff, and Weeks-Savag e. We vacate Hug hes’s sente nce a nd rema nd for r esente ncing

.

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United States v. Mc

Allister , Patterson , Hughes , Ratcliff , and W eek s-Savage JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur in the majority opinion in its entirety but write sep ar at el y t o emphasize one point with respe ct to the appea l of Stanley Hug hes. Often cry

ptic ref ere nces in a re cord ha

ve mea ning to the district c ourt participa nts tha t is not appar ent to us. Her e, counsel for Hug hes likely knew how Hug hes’s criminal rec ord compar ed with that of h is co-de fenda nts. The district court cer tainly was awa

re of the compar ison. The ref ere nce to H ug hes’s criminal rec ord by both c ounsel and the district court may well have car ried

an unstated implication that Hug hes’s criminal rec ord compar ed unfavor ably to that of other defe ndants who wer e more culpable in this conspirac y . But we cannot infer that implication whe n it is not made expli cit. My instincts tell me that the very experience d, thoroug h district judge in this

case perf ormed exactly the analy sis we require on reman d and that those prese nt likely knew his

rea soning. B ut of course instincts cannot provide the ba sis for dec ision.

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