The Honorable Avern Cohn, United States District Judge for the Eastern District of *

Michigan, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 07a0416n.06

Filed: June 19, 2007

No. 06-3458

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH PETTIE,

Defendant-Appellant.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR T H E

NORTHERN DISTRICT OF

OHIO

O P I N I O N

BEFORE: COLE and McKEAGUE, Circuit Judges; and COHN, District Judge.*

McKEAGUE, Circuit Judge. Joseph Pettie received a 77-month sentence of imprisonment

for being a felon in possession. The sentence is at the bottom of the advisory United States

Sentencing Guidelines (the “Guidelines”) range. On appeal, Pettie contends that the district court

failed to consider several of his arguments for a lesser sentence, resulting in an unreasonable

sentence under United States v. Booker. For the reasons set forth below, we affirm.

I

Pettie pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). Based on his prior drug trafficking offenses, his base-offense level under the Guidelines

equaled 24. He received a three-level reduction for acceptance of responsibility, resulting in a total-
No. 06-3458

United States v. Pettie

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offense level of 21. With a criminal history category of VI, his advisory Guidelines sentencing range

totaled 77 to 96 months of imprisonment.

Pettie sought a sentence below the advisory Guidelines range. He pointed out the following

to the district court: (a) his good behavior since pleading guilty; (b) his role as primary care giver to

his parents, who were in poor health; (c) his own poor health; and (d) his fiancee’s assistance in

helping him to transition into the community upon his release. The Government responded that he

should receive a within-Guidelines range sentence, given his seven prior criminal convictions for

drug and firearm offenses. It further took the position that his parents’ health problems did not

warrant a lower sentence.

In announcing Pettie’s sentence, the district court judge explained:

I have listened to both counsel, and of course to Mr. Pettie, and I have reviewed the

thorough pre-sentence report.

As I mentioned earlier, the Guidelines are now only advisory. However, the

Court must consult them, and in essence, start there in its analysis, and ultimately

consider all the facts and circumstances of this particular offense, the nature,

qualities, and characteristics of this particular defendant, and impose a sentence

which is reasonable and appropriate to meet the four statutory objectives of

sentencing set out in Title 18, Section 3553(a) which are punishment, deterrence,

rehabilitation and protecting the community.

In this case, I conclude that a sentence within the advisory Guideline range

is reasonable and appropriate. Mr. Pettie has a 20-year history of drug and weapons

offenses. He has a very sporadic work history. In his latest offense, he had both a

gun and drugs when he was arrested.

I will exercise my discretion and impose a sentence at the low end of the

advisory Guidelines range. I think that that is reasonable and appropriate, and is not

more—that sentence is not more harsh than necessary to accomplish the purposes of

sentencing.
No. 06-3458

United States v. Pettie

In his argument on appeal, Pettie does not reference his good behavior prior to sentencing. 1

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So I will sentence you to 77 months custody of the Attorney General. That

will be followed by a three-year period of supervised release. . . .

* * *

And as Mr. Thompson mentioned, I take particular note of your [fiancee]

being present in Court. I know it is hard for her to be here, probably not so easy for

you to have her here, but you are fortunate. As your lawyer said, a lot of people come

in here alone and leave alone, so you are fortunate to have her support.

II

Pettie pursues one claim on appeal: whether the district court imposed an unreasonable

sentence because it failed to address specifically his request for a lower sentence based on his poor

health, the poor health of his parents, and the availability of his fiancee to assist him to transition

back into the community upon his release. The Government argues that the district court provided 1

a sufficient explanation of the sentence to enable appellate review.

Under United States v. Booker, 543 U.S. 220 (2005), the district court and the appellate court

have distinct roles in sentencing. The district court must “impose a sentence sufficient, but not

greater than necessary, to complywith the purposes” of 18 U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a);

Booker, 543 U.S. at 260. The appellate court, on the other hand, must determine whether a sentence

is reasonable. Booker, 543 U.S. at 261-62. In effect, “[r]easonableness is the appellate standard of

review in judging whether a district court” has fulfilled its mandate under 18 U.S.C. § 3553(a).
No. 06-3458

United States v. Pettie

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United States v. Collington, 461 F.3d 805, 807-08 (6th Cir. 2006) (emphasis in original) (quoting

United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006)).

The reasonableness test has substantive and procedural components. Focusing on the

procedural component, Pettie contends that the district court failed to consider several of his

arguments for a lesser sentence. To ensure procedural reasonableness, this court asks whether the

district court appreciated the advisory nature of the Guidelines, correctly calculated the applicable

Guidelines range, and considered the Guidelines range along with the other relevant § 3553(a)

factors in crafting a sentence. United States v. Davis, 458 F.3d 491, 495 (6th Cir.), petition for cert.

filed (U.S. Nov. 13, 2006) (No. 06-7784).

There is no question in this case that the district court correctly calculated the applicable

Guidelines range, nor is there any question that it appreciated the advisory nature of the Guidelines.

Thus, Pettie’s within-Guidelines range sentence is afforded a rebuttable presumption of

reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir.), petition for cert. filed (U.S.

July 11, 2006) (No. 06-5275). To succeed on his claim, therefore, Pettie “must show that the district

court made sufficient errors in applying (or failing to apply) the remaining sentencing factors such

that his sentence was unreasonable, even though his sentence fell within the correctly calculated

Guidelines range.” United States v. Gale, 468 F.3d 929, 937 (6th Cir. 2006), petition for cert. filed

(U.S. Feb. 20, 2007) (No. 06-1157).

This court considered a similar claim made by a criminal defendant in United States v. Gale.

In that case, the defendant argued that a district court’s sentence was unreasonable because that court
No. 06-3458

United States v. Pettie

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had not addressed each and every claim he had made for a lesser sentence. On appeal, this court

rejected that argument:

To enable us to review the reasonableness of a sentence, all we require of the district

court is to “articulate[] its reasoning sufficiently to permit reasonable appellate

review.” Williams, 436 F.3d at 709. “[A] sentencing judge must explain to the

parties and the reviewing court its reasons for imposing a particular sentence.”

[United States v.] Jones, 445 F.3d [865,] 871 [(6th Cir.), cert. denied, 127 S. Ct. 251

(2006)]. When a district court adequately explains why it imposed a particular

sentence, especially one within the advisory Guidelines range, we do not further

require that it exhaustively explain the obverse—why an alternative sentence was not

selected—in every instance. Jones, 445 F.3d at 871; see also United States v.

Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (“[W]e will not conclude that a district

judge shirked her obligation to consider the § 3553(a) factors simply because she did

not discuss each one individually or did not expressly parse or address every

argument relating to those factors that the defendant advanced.”), cert. denied, —

U.S. —, 127 S. Ct. 192, — L.Ed.2d — (2006).

Of course, there may be a case in which a district court provides little, if any,

affirmative indication that it considered all of the relevant sentencing factors and

evidence when it sentenced a defendant. When, on appeal, a defendant’s argument

and supporting evidence presents an arguablymeritorious claim for a lesser sentence,

but there is little to suggest that the district court actually considered it, then remand

may be appropriate. See, e.g., United States v. Cunningham, 429 F.3d 673, 679-80

(7th Cir. 2005).

* * *

As for the arguments the district court did not expressly address, it was not

required to do so. “A sentencing judge has no more duty than we appellate judges

do to discuss every argument made by a litigant; arguments clearly without merit can,

and for the sake of judicial economyshould, be passed over in silence.”Cunningham,

429 F.3d at 679-80; see also United States v. Cooper, 437 F.3d 324, 329 (3d Cir.

2006) (explaining that to comply with the obligation to consider the relevant

sentencing factors, a “court need not discuss every argument made by a litigant if an

argument is clearly without merit”).
No. 06-3458

United States v. Pettie

Pettie relies upon United States v. Richardson, 437 F.3d 550 (6th Cir. 2006), for the 2

proposition that a district court must address on the record each argument made for a lower sentence.

He reads too much into the holding of Richardson. The court held in that case that “[e]ven when

selecting a presumptively reasonable sentence within the Guidelines range, a district court must

‘articulate[] its reasoning sufficiently to permit reasonable appellate review, specifying its reasons

for selecting’ the specific sentence within that range.” Id. at 554 (quoting Williams, 436 F.3d at 709).

It then went on to declare that “[w]here a defendant raises a particular argument in seeking a lower

sentence, the record must reflect both that the district judge considered the defendant’s argument and

that the judge explained the basis for rejecting it.” Id. Doing so would “assure[] not only that the

defendant can understand the basis for the particular sentence but also that the reviewing court can

intelligently determine whether the specific sentence is indeed reasonable.” Id.

Subsequent decisions by this court have cautioned against reading Richardson too broadly.

The defendant in Richardson had not pointed to any specific arguments that the district court failed

to address during the sentencing hearing. Thus, the matter was not before the court on appeal, and

its declaration that a district court “must” explain the basis for rejecting each argument made by a

defendant was dicta. See, e.g., United States v. Feazell, No. 06-1147, 2007 WL 675659, at *3 (6th

Cir. Mar. 7, 2007) (unpublished) (“Contrary to [the defendant’s] suggestion, our decision in United

States v. Richardson, 437 F.3d 550 (6th Cir. 2006), does not compel district courts to address every

argument the defendant raises—no matter how non-meritorious or undeveloped it is—in imposing

a sentence.”); United States v. Tyler, No. 05-2252, 2007 WL 634436, at *2 (6th Cir. Mar. 2, 2007)

(unpublished) (describing Richardson’s declaration as “dicta”).

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Id. at 940 (emphasis in original).2

A review of the district court judge’s reasoning confirms that Pettie’s sentence was

procedurally reasonable. The district court judge began by explaining that he had listened to

counsels’ arguments, reviewed the presentence report, and considered the relevant sentencing

factors. He recognized his duty to impose a sentence “sufficient, but not greater” (or, in his words,

“more harsh”) “than necessary to comply with the purposes” of 18 U.S.C. § 3553(a)(2). Although

not required to do so, United States v. Dexta, 470 F.3d 612, 615 (6th Cir. 2006), petition for cert.

filed (U.S. Feb. 27, 2007) (No. 06-9826), he also summarized the various sentencing factors listed

in that subsection—“punishment, deterrence, rehabilitation and protecting the community.”
No. 06-3458

United States v. Pettie

In reference to Pettie’s own health, counsel further argued that the Federal Bureau of Prisons 3

could face an “increased cost” to care for him. Not only does this consideration not fit into any of

the sentencing factors listed in 18 U.S.C. § 3553(a), it also would apply to all prisoners generally,

and all prisoners with medical problems specifically.

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As to Pettie’s own health problems, defense counsel did not argue that the defendant could

not receive adequate medical care in prison, a factor under § 3553(a)(2)(D). Instead, counsel argued

that, as one of Pettie’s physical characteristics, his ill-health warranted leniency in the form of a

lower sentence. Counsel also listed as one of Pettie’s “admirable traits” the fact that he cared for 3

his parents. However, it is clear that the district court judge did consider Pettie’s “history and

characteristics” (§ 3553(a)(1)) in fashioning his sentence, but focused on his 20-year history of drug

and weapons offenses and sporadic work history, rather than his own and his parents’ poor health.

The district court judge further considered “the nature and circumstances of the offense”

(§3553(a)(1))—the possession of a gun—as well as the possession of drugs, which “reflect[s] the

seriousness of the offense” and the need to “provide just punishment for the offense” (§

3553(a)(2)(A)).

While the district court judge did not explicitly discuss the impact that Pettie’s sentence

would have on his parents, he was not required to do so for our review. It is not uncommon for

criminal defendants to have people—children, parents, spouses, siblings, etc.—who depend on them

for care and support. Unfortunately, “‘tragedy is a regular consequence of criminal conduct,’ both

for the victims and the defendant’s own family.” Gale, 468 F.3d at 939 (quoting United States v.

Cage, 458 F.3d 537, 539 (6th Cir. 2006)). This type of regular, recurring circumstance need not be

discussed by a judge each and every time it is raised by a criminal defendant, especially in the
No. 06-3458

United States v. Pettie

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absence of some further development suggesting an exceptional hardship. Moreover, even had the

district court judge ordered a lower custodial sentence, Pettie would still have had to make

arrangements for his parents’ medical care for the period of his incarceration. Thus, fewer months

in prison would not have eliminated the quandary in which Pettie’s criminal activity put his parents.

As to Pettie’s fiancee, the district court judge took “particular note” that she was present in

the courtroom, and explained that the defendant was “fortunate to have her support.” Thus, it is clear

that the district court judge did consider her support of Pettie, even if the judge did not explicitly

discuss such support within the context of Pettie’s eventual release from prison.

Accordingly, we find that the district court judge adequately articulated the grounds for

Pettie’s sentence to permit appellate review. Pettie has not shown that the district court judge failed

to consider a meritorious argument for a lesser sentence, let alone an argument which would rebut

the presumption of reasonableness of a within-Guidelines sentence.

III

For the foregoing reasons, we AFFIRM Pettie’s sentence.