NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 11a0429n.06

No. 10-1273

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WHITNEY ATKINSON,

Defendant-Appellant.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FORTHEWESTERN

DISTRICT OF MICHIGAN

O P I N I O N

BEFORE: McKEAGUE and WHITE, Circuit Judges; ZOUHARY, District Judge.*

PER CURIAM. This is the second time around for Defendant-Appellant Whitney

Atkinson’s appeal of his sentence on federal firearm charges. In August 2007, Atkinson, who pled

guilty to two firearm charges, was sentenced to a total of 240 months based on a Sentencing

Guidelines range of 262–327 months. Atkinson’s Guidelines range calculation was driven by a

career-offender designation stemming from Atkinson’s two prior state convictions that occurred

close in time but were not directly related. The state court sentenced Atkinson for both crimes

during a single sentencing proceeding.

At the time of his 2007 federal sentencing, Amendment 709 to the Guidelines was pending. 

Amendment 709 altered the career-offender determination by providing that convictions sentenced

on the same day would not be treated as separate crimes when considering the career offender

The Honorable Jack Zouhary, United States District Judge for the Northern District of *

Ohio, sitting by designation.
designation. USSG § 4A1.2(a)(2), (3); USSG App. C, amend. 709 (2007). Amendment 709 went

into effect in November 2007, slightlymore than two months after Atkinson was sentenced in federal

court. The Amendment was not designated as retroactive. See United States v. Horn, 612 F.3d 524,

524 (6th Cir. 2010). 

Atkinson appealed the federal sentence in September 2007, arguing the district court erred

in failing to consider the effect of the then-proposed Amendment 709 when it imposed the 240-

month sentence. In December 2009, this Court remanded the case for resentencing with instructions

for the district court to consider that Amendment 709 became effective shortly after sentencing. 

United States v. Atkinson, 354 F. App’x 250, 253–54 (6th Cir. 2009). 

On remand, the district court invited the parties to submit memoranda in advance of the

resentencing. At the resentencing, the court considered the arguments raised in the memoranda,

discussed the reasons for not applying Amendment 709, and subsequently imposed the same 240-

month sentence. Atkinson now claims the district court refused to consider the effect of Amendment

709, as this Court instructed. 

Our review of the district court’s sentencing decision “is limited to determining whether the

sentence is reasonable under an abuse-of-discretion standard.” United States v. Perez-Vasquez, 570

F.3d 692, 695 (6th Cir. 2009) (citing Gall v. United States, 552 U.S. 38, 46 (2007)). “The

reasonableness review is split into two parts: procedural reasonableness and substantive

reasonableness.” United States v. Benson, 591 F.3d 491, 500 (6th Cir. 2010) (citing United States

v. Collington, 461 F.3d 805, 808 (6th Cir. 2006)).

The resentencing was procedurally reasonable. “A sentence is procedurally inadequate if the

district court fails to calculate properlythe Guidelines range, treats the Guidelines as mandatory, fails

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to consider the 18 U.S.C. § 3553(a) factors, selects the sentence based upon clearly erroneous facts,

or fails to adequately explain the chosen sentence.” United States v. Harmon, 607 F.3d 233, 238 (6th

Cir. 2010). A party must make specific objections to purported procedural errors; if the procedural

objections are too vague, a plain error standard applies to procedural reasonableness arguments. See

Harmon, 607 F.3d at 237–38.

Atkinson fails to identify any specific procedural errors in his resentencing, and he

acknowledges the district court did not miscalculate the Guidelines range under the law as it existed

when he was sentenced. As evidenced by the resentencing colloquy, the district court did not treat

the Guidelines as mandatory. Nor did the court refuse to consider the policy behind the nonretroactive Amendment 709. Further, the district court considered the Section 3553(a) factors. 

Finally, the district court did not base the sentence upon clearly erroneous facts or fail to adequately

explain the sentence. While Atkinson may not like the district court’s explanation as to why the

same 240-month sentence was imposed, there was no procedural error in the resentencing. 

Likewise, the resentencing was substantively reasonable. Atkinson characterizes the district

court’s statements during the resentencing colloquy as a “refusal to exercise discretion,” which

resulted “in an unreasonable sentence,” but the transcript of the resentencing shows otherwise.

The district court considered the reasoning and rationale behind Amendment 709 and

contrasted it with the specific facts of Atkinson’s prior convictions. The court determined that

giving Atkinson the benefit of the then-proposed Amendment would simply be a matter of “exalting

form over substance.” In support of its decision, the court posed hypotheticals to counsel, provided

a short summary of the facts of Atkinson’s two prior convictions, and summarized the scenario that

led to Atkinson’s state court sentencing. Specifically, the court noted Atkinson committed two

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armed robberies a month apart, was fortunate not to have been arrested in the interveningmonth, and

then was sentenced in a single hearing for both crimes as a matter of convenience and efficiency. 

The district court concluded by stating: “But common sense tells me that even before

November 1, two separate charges, two separate victims, two separate times, sentencing by

convenience of the circuit court at the same time, but two different dockets means they can well be

treated differently, and for good reason.” Even if this Court “might reasonably have concluded that

a different sentence was appropriate,” Gall, 552 U.S. at 51, the district court expressed its reasons

for considering, but rejecting the application of Amendment 709, and such consideration is sufficient

to withstand reversal.

AFFIRMED.

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