NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0431n.06 No. 08-1336 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. ANDRE VAN , Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRICT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : SUHRHEI

NRI CH, MOORE, and COOK, Circ uit J udg es.
COOK, Circuit J udg e. A jury con v i ct ed Andre Van of drug distribution, possession of a firea rm in further ance of a drug -traf ficking offe nse, and possession of a firea rm by a convicted felon. The district court sentenc ed Van to 360 months’ imprisonment. Van now appea ls, claiming that the district court (1) improperly denied his Rule 8(a) motion to sever the felon-in- possession char g e; (2) violated his due proce ss rig hts by , among other things, desc ri b i n g a fede ral ag ent as an expert witness; and (3) failed to rec og nize the advisory nature of the Sentencing Guidelines. We aff irm his conviction and se ntence
.
I

.No. 08-1336

USA v. Van

A g rand jury char g ed Andre Van with distribution of heroin and cra ck coca ine (counts one, three , four, and five); possession of a firea rm in further ance of a drug -traf ficking crime (count two); and possession of a firea

rm by a conv i ct ed felon (count six ). The drug char g es stem from Van’ s interac tions with an underc over ATF Special Ag ent, Michae l Yott, who claimed that Van sold him drug s on four separ ate occa sions over the course of a wee k. The felon-in- possession count arose a

wee k afte r these drug buy s when Detroit police discovere d a firea rm in Van’ s vehicle during a traff ic stop.

Be fore trial, Van filed a Rule 8(a) motion to sever count six of the indictment, claiming its j o i n der would allow the g overnme nt to “bootstrap” its elements into count two (possession o f a firea rm in further ance of a drug -traf ficking crime) , which occurre d near ly two wee ks ear lier. The district court denie d the motion for lack of prejudice , and Va

n proce eded to tr ial on all six counts.

At trial, Van admitted to two o f t h e d ru g buy s but denied responsibility for the other two, including the purc h ase underly ing the possession-of-a -fire arm-in- further ance -of- drug -traf ficking char g e. Van claimed that his nephew conducte d those sales and that Van mere ly rec ommended Yott

as a relia b l e customer. Yott wore a wire and rec orded three of the transac tions; the g overnme nt introduced the rec ording s into evidence. I t also introduced rec orded telephone conver sations betwee n Van a

nd Yott arra

ng ing f or drug purcha ses.

Yott testified that Van had a firea rm either near

by or on his person d u ri n g all four
transac tions. Acc ording to Yott, during one buy , he and Van even “discussed the ca l i b er of the - 2 -No. 08-1336

USA v. Van
firea rm, as well as a couple of jokes

. . . about, y ou know, don’t shoot y ourself, that ty pe of thing.” Van d o es n o t contest that, during the initial drug buy , a revolve r rested on the coff ee table and a shotgun leane d ag ainst the wall. But Van disputes Yott’s claim that Van car ried this same revolve r during the other transac tions. Yott conce ded that he could see only part of the g un during the latter three drug buy s.
After t h e third drug purcha se, Yott—who then knew Van only as “Dr e”—dir ecte d two office rs to conduct a traff

ic stop of Van’ s vehicle to procur e identification. During this stop, one of the office rs observe d a brow n l ea ther holster in the bed of the truck, but did not see drug s or a firea rm. Whil e Va

n claims that the off

icer s sear ched him and his truck, this same off icer testified that he did not sear ch Va

n, but did not reca ll whether his par tner did.

A wee k afte r Van’ s final sale to Yott, Detroit police stopped Van for a traff ic violation. Two office rs attested that, as they attempted to pull Van over, they witnessed him bend downwar d “as [i f] he was placing something by his fee t or under the seat.” As the office rs approa ched, Van started to step out of his truck and one of the office rs observe d an empty holster o n h i s l eft hip. When questioned about the empty holster, Van said that he “[wore] it fo r s h o w.” One of the office rs spotted a blue steel .38-ca liber revolve r ly ing under the driver’ s seat. Van admitted that he did not have a conce aled- car

ry permit, and the of

fice rs ar rested him.

Detroit Police Serg eant Ramon Childs interviewe d Van following his arr est. Childs testified that Va n ad m i t t ed to having a g un when arr ested. Acc ording to Childs, Van said that “he had - 3 -No. 08-1336

USA v. Van

g ot[ ten] shot almost two wee ks ag o, and he

. . . forg ot his nephew had the pistol in the truck.” When presse d by Childs as to why he rea lly had the g un in his truck, Van said “for my protec tion.” After the i nterview , Van init ialed these statements. At trial, howeve r, he denied bending forwa rd in his truck, and ag ain claimed that his nephew put the g un in his vehicle and that he did not know it was there

.
A few wee ks afte r Van’ s interview with Childs, ATF S p ec i al Ag ent Gre g ory L otoczky videotaped an interview with Van. Acc ording to L otoczky , Van admitted to selling cra ck. He also admitted to having a .38-c aliber r evolver that “he w ould wear

. . . when he was a t the house i n his waistband” and “would . . . car ry . . . out to his truc k if he was g oing to the bank or something like that.” Van maintained, howeve r, that the g un police discovere d at the traff ic stop “didn’t belong to him” and “wa s put in [hi s truck] by his nephew .” Van ref used to initial the majority o f his
statements as re corde d by L otoczky —including tha t he ca

rried a .38-ca liber re volver.

At trial, Va n denied telling L otoczky that he sold cra ck coca ine, car ried the .38-ca liber revolve r in his waistband, or car ried a firea

rm for protec tion. He acc used L otoczky of “cha ng ing the story around,” and denied initialing some of t h e statements. Following Van’ s testimony , the g overnme nt rec alled L otoczky

. He testified that, on the night befor e, he revie wed the videotape of his interview with Van; and he confirme d that Van admitted to selling cra ck coca ine and to car ry ing the .38-ca liber revolve r in his waistband when he was at home. L otoczky admitted to acc using Van of ly ing at cer

tain times during the interview.

- 4 -No. 08-1336

USA v. Van
The jury convicted Van on all counts. Under the car eer -off ender g uideline, Van’ s advisory Guidelines rang e was 360 months t o l i fe

. See U.S. Sentencing Guidelines Manual § 4B1.1. The district court sentenc ed Va n to 360 months’ imprisonm ent. He now appea ls.

I I

.
A.

Van first claims that the district court err ed in deny ing his pretria l Rule 8(a) motion to sever his felon-in-possession-of -a- firea rm cha rg e. Unde r Rule 8(a ),
[t ]he indictment or information may char g e a defe ndant in separ ate counts with 2 or more offe nses if the offe nses char g ed—whe ther felonies or m i sdemea nors or both—are of the same or simil ar char acte r, o r ar e b as ed on the same act or transac tion, or are connec ted with or constitute par ts of a common sche me or plan.

Fe d. R. Crim. P. 8( a). We ty pically revie w this issue de novo, United States v. Locklear , 631 F.3d 364, 368 (6th Cir. 2011), by examining the alleg ations on the fac e of the indictment, United States

v. Deitz , 577 F.3d 672, 691 (6th Cir. 2009), cert. denied , 130 S. Ct. 1720 (2010). But we forg o this 1 analy sis beca

use we deter

mine that, even if the indictment improperly joined the counts ag ainst Van, any err or qualifies as harmless. See Locklear , 631 F.3d at 369 (noting that a finding of misjoi nder is subject to harmless-e rror revie w); Miller v. Stovall , 608 F.3d 913, 927 (6th Cir. 2010) (re cog nizi ng

As the g overnme nt a cknowledg ed at oral arg ument, failure to rene w a Rule 8(a) motion at 1 the close of t he evidence does not forf eit an im proper -joinder claim. See U nited States v. Chavis , 296 F.3d 450, 457–58 ( 6th Cir. 2002). - 5 -No. 08-1336

USA v. Van
that this court may conduct harmless-e rror revie w sua sponte but has no obliga tion to do so), petition for cert. filed , 79 U.S.L .W. 3404 (U.S. Dec

. 2 1 , 2010); United States v. Mitts , 396 F. App’x 296, 302–03 (6th C i r. 2010) (apply ing harmless-e rror revie w despit e gover nment’s failure t o arg ue for such revie w on appea l), petition for cert. filed , --- U.S.L .W.

--- - (U.S. Fe b. 11, 2011) (Nos. 10-9035, 10A546).

Under harmless-e rror revie w, we reve rse only if the err or aff ecte d the defe ndant’s substantial rig hts by “hav[ing ] a substantial and injurious eff ect or influence in deter

mining the jury ’s verdic t.” Locklear , 631 F.3d at 369 (interna l quotation marks and citation omitted). Fa ctors demonstrating harmlessne ss include (1) the issuance of limit ing instructions to the jury ; (2) overw helming evidenc e of guilt; and (3) the admis sibili ty of evidence conce rning the m isjoine d counts
. Chavis , 296 F.3d
at 461. The prese nce of eac h of these mitigatin g fa ct ors in Van’ s case supports our finding of harmless e rror . “[T] he dang er of prejudice result i n g from improper propensity infere nces can be reduc ed signific antly by proper cura tive instructions.” Id

. at 461. Where the court issues such instructions, “[e]rror based on misjoi nder is almost alway s harmless.” United States v. Cody , 498 F.3d 582, 587 (6th Cir. 2007). “[W ]e should presume that the jury followed this instruction and did not make an improper propensity infere nce.” Chavis , 296 F.3d a t 462 . The district cour t thus li kely

offse t any potentially

prejudicia l effe ct of the joinder with its curative instruction:

- 6 -No. 08-1336

USA v. Van
This defe ndant has been char g ed with sever al crimes. The number of char g es itself is no evidenc e of g uilt and this should not influence y our decision in any way . I t’s y our dut y to separ ately consider the evidenc e that rela tes to eac h charg e and to return a separ ate verdic t for eac h one. For eac h char g e, y ou must decide whether the Gover nment has prese nted p ro o f b ey ond a rea sonable doubt that the Def endant is g uilty of that particula

r char g e. Your decision on one char g e, whether it is g uilty or not guilty , should not influence y our dec ision on any

of the other

char g es.
This court has previously found virtually identical instructions to signific antly reduc e the potential prejudice of any

misjoi nder. See Cody , 498 F.3d a t 588; Chavis , 296 F.3d a t 462.

The g overnme nt, moreove r, prese nted substantial—and possibly overw helming—e vidence

a g a in s t Van on the possession-of-a -fire arm-in- further ance -of- drug -traf ficking char g e. Yott testified that Van sold him cra ck coca ine and heroin while standing only a few fee t from both a revolve r and

a shotgun. Although Van denied responsibility for that drug sale, he admitted that a revolve r sat on the table during the transac tion. Yott testified that Van car ried this revolve r during the ensuing drug buy s, and that he and Van discussed the caliber of the firearm during a recorded buy —the t ape of which the g overnme nt play ed for the jury

. L otoczky corr oborate d Yott’s statements, claiming that Van admitted to “ca

rry ing a 38 revolve r i n [hi s] waistb an d

. ” Al t h oug h Van refuse d to initial this
statement following the interview, and denied making it, L otoczky identified the portions of the interview vide otape that r efle cted this statement.

F in a ll y , V a

n d oes not contend that sever ing the felon-in- possession char g e would ha v e b a r r e d
t h e g o v e r n m e n t f

r o m i n t r o d u c i n g t h e u n d e r l yi n g f i r e a r m i n s u p p o r t o f t h e possession-of-a -fire arm-in-furtherance -of- drug -traf ficking char g e. He posits mere ly that the - 7 -No. 08-1336

USA v. Van

g overnme nt could not have introduced evidenc e of his felon status. The prejudicia l ef fe ct of this infor ma ti o n , h o w e v e r , w a s li mi te d beca use the specific crime underly ing his previous conviction was

never reve aled to the jury since Van stipulated to his felony status, “ther eby preve nting the jury from hear ing te stimony

about it.” See Lock

lear , 631 F.3d a t 369.

Ba sed on these fac tors, any err or the district court may have committed in permitting joinder of these c ounts qualifies as har mless.

B.

Van next demands reve rsal of his convictions on counts one, two, three , and six , contending that the di strict court viol ated his rig ht to due process and a fair t rial wh en i t descr ibed Yott as an

ex p er t witness without either formally qualify ing him as such or distinguishing betwee n Yot t ’s fac tual and expert testimony

. Acc o r d in g to V a n , this oversig ht bolstered Yott’s “suspec t” cre dibilit y .
I n the cha lleng ed stateme nt, the district court instructed the jury as follows:

Yo u h av e h ear d the testimony of Michae l Yott, who testified as an exper t witness and as a fa ct witness. Reg arding his ex pert testimony , y ou should treat his expert opinion as any other ex pert opini on. You d o n o t have to acc ept an expert’s opinion. I n deciding how much weig ht y ou g ive to i t , y o u s h ould consider the witness’[s] qualifica tions and how he rea ched his conclusions. Remember, that y ou alone decide how much of a witness’[s] testimony to believe and how much weig ht it deser ves. You should consider that he was also a fac t w itness a nd participa ted in the investiga tion of this case in deciding how much of his expert testimony to believe or wha t weig ht to give it, if a ny .

- 8 -No. 08-1336

USA v. Van

Van’ s counsel objected to this instruction, arg uing that Yott “wa s never qualified as an expert in this

case .” The district c ourt acknow ledg ed that Yott w as not f ormally qualified as an e x pert, but held that the instruction could not “cr edibly be said to prejudice the jury in any way ,” espec ially beca use Yott “was, to some e x tent, trea ted as a n expert.”

“We revie w challeng es to jury instructions under the abuse- of-discr etion standard.” United States v. W

illiams , 612 F.3d 500, 506 (6th Cir.), cert. denied , 131 S. Ct. 367 (2010). “The Court 2 considers the jury instructions as a whole to deter mine whether they fairly and adequately submitt ed the issues and applicable law to the jury .” Nolan v. Mem phis City Sch. , 589 F.3d 257, 264 (6th Cir. 2009) (interna l quotation marks and citation omitted). “A judgme nt may be reve rsed based upon an improper jury instruction only if the i nstructions, viewed as a whole, were confusing, misl eading , or pre judicial.” W

illiams , 612 F.3d a t 506 (internal quotation mar ks and citation omitted).

Van’ s arg ument for rever sal base d o n t h e district court’s description of Yott as an “expert witness” during t h i s j u ry i n s t ruction fails. Thoug h Van cites a string of case s opining that courts should not descr ibe a witness as an expert, see, e.g. , United States v. Johnson , 488 F.3d 690, 697–98 (6th Cir. 2007), none supports reve rsal of Van’ s convictions. The judge ref err ed to Yott as an expert only once. And he did so in the context of a cautionar y jury instruction, there by mitigating an y

T h e go v ernment arg ues for plain-er ror revie w, claiming that, while Van objected to the 2 disputed jury instruction be low, he did so solely beca use Yott “wa s never qualified as an expert in this case .” But we need not deter mine whether Van sufficie ntly prese rved the basis for his objection articula ted her e bec ause his ar g ument fails eve n abuse- of-discr etion revie w. - 9 -No. 08-1336

USA v. Van
additional cre dence the jury might have g rante d. See United States v. Serafino , 281 F.3d 327, 331 (1st Cir. 2002) (finding “wha tever specia l aura the j ury might otherwise have attache d to the term ‘expert’” mit i gat ed b y instruction that “[e]x pert testimony should be considere d just like other testimony ” (alter ation in orig inal) (emp h as is omitted) (interna l quotation marks and citation omitted)).

Van’ s arg ument that the district court compounded this supposedly improper jury instruction by failing to qualify Yott as an expert simil arly falter s. To the extent that Yott’s g ener al statement reg arding the fre quency with which drug deale rs car ry firea rms or his specific statements about the g un he obser

ved in this case qualify as ex pert testimony , the district court a ppropriate ly

permitted Yo tt—who had serve d as a Detroit police office r for two y ear s and as an ATF specia l age n t fo r twenty y ear s—to offe r such testimony without first formally qualify ing him as an expert. See United States v. Cobb , 397 F. App’x 128, 139 (6th Cir. 2010) (“I f a witness’s qualifica tions are obvious, we have found that there is no need to formally qualify him as an expert.”), cert. denied , 131 S. Ct. 1801 (2011); United States v. Lopez-Me dina , 461 F.3d 724, 742–43 (6th Cir. 2006) (finding no abuse of discretion in district court’s failure to q u alify Drug Enforc ement Administration ag ents befor e allowing their expert testimony ).
Rely ing on Lopez-Me dina , Van arg ues t hat t he dis trict court’s failure to issue a cautionar y instruction informing the jury of Yott’s dual role as an expert and fac t witness both befor e he offe red any opinion evidenc e and ag ain before deliberations m erits re v er s al

. But Lopez-Me dina does not

- 10 -No. 08-1336

USA v. Van require a district court to offe r such instructions twice; it found err or wher e the d i s t ri ct court provided neither a cautionar y jury instruction reg arding the ag ents’ dual ro l es nor a clea r demar cation b et ween their fac t and expert testimony

. 461 F.3d at 745. Her e, the district court offe red an expert-witness instruction and cautioned the j u ry t h at Yott testified in two capa cities. This instruction, moreove r, addre ssed the “par ticular co n ce rn s ” that the Lopez-Me dina court identified as arising when an office r g ives expert testimony : it “g uard[ed] ag ainst a jury mistakenly weig hing opinion testimony as if the opinion wer e fac t,” “instruct[ed] the jury that they [were] fre e to reje ct the opinions g iven,” and “addr ess[ed] the additional risk of bias in forming expert conclusions reg arding one’s own investiga tion.” See id

. at 744; see also United States v. Neeley , 308 F. App’x 870, 878–79 (6th Cir. 2009) (finding no plain err or despite instruction desig nating witness

as an expert beca

use the trial court addre ssed the “par ticular conce rns” of Lopez-Me dina by g iving “a g ener al instruction on witness cre dibilit y as we ll as an expert witness instruction”). 3
Finally , Van claims that three other trial events compounded the court’s supposed error in descr ibing Yott as an “expert.” Although he does not say so expli citly , Van presumabl y pairs the challeng ed jury

instruction with these events to a rg ue that the cumulative e ffe ct of these supposed

err ors amounted to a denial of his due proce ss rig ht to a fair trial. See United States v. Cobleigh , 75

Van also relies upon United States v. Serafino , 281 F.3d 327 (1st Cir. 2002), and Scheidt v. 3 Klein , 956 F.2d 963 (1 0th Cir. 1992), two case s in which the district court instructed the jury reg arding the evalua tion of expert witness testimony

. I n both case s, the defe ndant failed to establish plain err or. And the distinctions Van emphasizes do not compel us to find an abuse of discretion in his case. - 11 -No. 08-1336

USA v. Van
F.3d 242, 249–50 (6th Cir. 1996). But none of the circ umstances Van identifies conver ts the court’s ref ere nce to Yott as a

n expert during jury

instructions into reversible e rror .
Van first claims that the district court b olstered Yott’s cre dibilit y and diminis hed defe nse counsel in front of the jury when it cut short counsel’s cross-e x amination of Yott reg arding the way he titled his investiga tion repor t and acc used counsel of “wa sting the jury ’s time.” But the law does
not require the court to rema in a silent observe r, and this single incident did not improperly bolster Yott’s cre dibilit y . See United States v. Powers , 500 F.3d 500, 511–12 (6th Cir. 2007) (noting that judge “may interjec t himself into the t rial, speak to co u n s el , and question witnesses,” and finding

co u rt “within its discretion to move defense counsel along from a repe titive and irrelevant l i n e o f questioning” ).

Nor does the witnesses’ supposed violation of a sequestra tion order further Van’ s arg ument. At the conclusion of Yott’s testimony , Yott spoke with defe nse counsel re gar ding the distinction betwee n a snub-nose revolve r and a .38-ca liber revolve r. During this conve rsation, two other witnesses, Offic ers Amos and Estrada , approa ched, and Y o tt a s k e d h o w th e y w o uld descr ibe the g un. When defe ns e co unsel moved for a mi strial—a mot ion the di strict court denied—the gover nment arg ued that Yott did not discuss the substance of his testimony with the office rs. Def ense counsel,

moreove r, cr oss-examined Amos on this i ssue, exposing any possible collusion to t he jury

.
And Van’ s last claim—that the office rs’ failure to uncover a firea rm d u ri ng a sear ch undermined Yott’s testimony that Van car ried a firea

rm during the third drug sale—a lso proves - 12 -No. 08-1336

USA v. Van unavailing

. Thoug h Van testified that the office rs sear ched him, one of the office rs involved testified that he and his partner

stopped Van solely

to ask for ide ntification and that he never sear ched Van or his vehicle.

Be cause we reje ct all of the “er rors” Van identifies, we conclude that he was not denied his due process right t o a fair t rial. See U nited States v. Swidan , 888 F.2d 1076, 1081 ( 6th Cir. 1989) (“The re c an be no a ccumulation of e rror s when no e rror s are found.”)

.
C. Finally , Van claim s t h e s en tencing court err ed proce durally by trea ting the Guidelines as mandatory rathe r t han advisory and failing to resolve a di spute about t h e n at ure of the Guidelines in open cour

t. We review the sentenc e for an abuse of discretion. Gall v. United States , 552 U.S. 38, 51 (2007). A court commits proce dural err or by “fa iling to calc ulate (or improperly calc ulating)

4 the Guidelines rang e, trea ting the Guidelines as mandatory , failing to consider the § 3553(a) fac tors, selec ting a sentenc e based on clea rl y er ro neous fac ts, or failing to adequately explain the chosen
sentenc e—including an explanation for a ny deviation from the G uidelines rang e.” Id

.

Abuse-of -discre tion rathe r than plain-er ror revie w applies beca

use the court failed to ask the 4 parties if they had any unraised objections to the sentenc e. See United States v. Bostic , 371 F.3d 865, 872 (6th Cir. 2004); see also United States v. Gapinski , 561 F.3d 467, 473–74 (6 th Cir. 2009) (finding that mere ly asking whether counsel had “[a]ny thing else for the rec ord” did not satisfy Bostic require ment (interna l quotation marks and citation omitted)). - 13 -No. 08-1336

USA v. Van

We normally “pre sume that the district c ourt understood its [sentencing ] discre tion, absent clea r evidenc e to the contrary .” United States v. Santillana , 540 F.3d 428, 431 (6th Cir. 2008). Her e, howeve r, the court sentenc ed Van in ear ly 2008—in the wake of Kimbrough v. United States , 552 U.S. 85 (2007), and Gall v. United States , 552 U.S. 38 (2007), two case s that clar ified courts’ authority to g rant varia

nces. I n simil ar case s wh er e t h e fl uctuating leg al landsca pe has g iven us

rea son to question whe ther the district c ourt understood its discr etion to va ry from the Guidelines,

we have instead revie wed the rec ord for “some indication of err or” and require d the appellant t o demonstrate more than “mer e conjec ture” that the court felt improperly const ra i n ed

. See, e.g. , United States v. Kosack , 366 F. App’x 642, 647–49 (6th Cir.), cert. denied , 130 S. Ct. 3339 (2010); United States v. Maye , 582 F.3d 622, 632–33 (6th Cir. 2009); United States v. Guest , 564 F.3d 777, 779–81 (6th Cir. 2009). We apply that standard here

. Neve rtheless, “by now, the defa ult assumption is that sentenc ing courts are awa re of their authority to vary from the Guidelines.” United States v. Borden , 365 F. App’x 617, 621 (6th Cir. 2010) (re viewing the rec ord for a “cle ar indication of err or” (interna l quotation marks and citation omitted)); see also United States v. Castaneda-Comacho , No. 09-6526, 2011 WL 1666898, at *2 (6 t h C i r. M ay 3, 2011) (“[W] e presume that the district court understood its discretion [to gra nt a depa rture or varia nce], absent c lear evidenc e to t he contr ary .” (alter ations in or igina l) (interna l quota tion marks and citation omitted)); United States v. RamirezSoria , No. 10-3148, 2011 WL 1462950, at *1 (6th Cir. Apr. 18, 2011) (pre suming the district court understood its authority to vary and, acc ording ly , requiring the defe ndant to “ad d u c [e] clea r evidenc e that the district judge err oneously believed he lacke d discretion” to vary from the Guidelines rang e).

- 14 -No. 08-1336

USA v. Van

Van points to the judge ’s adjournment of his initial senten cing hear ing to ref lect on the then-re cent Kimbrough and Gall decisions, which t he defe nse arg ued broade ned the judge ’s
sentenc ing discretion. I n adjourning the proce eding s, the judge noted that he felt “ver y uncomforta

ble” and that he “wa

nt[ ed] to fee l more cer

tain

. . . that [he] ha[d] some idea of what [hi s] discretion [ was] and how broad it [was] and som e idea how [ he] should use t hat di scre tion in this

case .” The jud ge s i d es t epped the issue when the sentenc ing hear ing later resumed, Van arg ues, failing to resolve the issue of its discretion or to acknow ledg e the advisory nature of the Guidelines.

T h e court committed no proce dural err or. I n adjourning the sentenc ing, the court mere l y acknow ledg ed Van’ s arg ument and c o mm it te d to g r a n ting it serious consideration. See United States

v. Damra , 621 F.3d 474, 508 (6th Cir. 2010) (re cog nizi ng court’s obliga tion to consider defe ndant’s nonfrivolous arg uments), cert. denied , --- S. Ct.

--- - (2011). I n the s econd hear ing, moreover , the district c ourt resolved the par ties’ dispute by

rec og nizi ng its discretion to issue either a downwar d depar ture or a varia nce: My strong est conce rn at the ear lier date in Dec emb er was whether the cr i m inal history used in the calc ulation of the sentenc ing g uideline ra n ge overr epre sented the seriousness of Mr. Van’ s criminal history , or the likelihood that the Def endant will commit further crimes. Your

sentenc ing memoranda , Mr. Van, argued strongly and persuasively

. . . that this is a case for downward departure or variance beca

use t he criminal history is overstate d. I’v e cons i der ed that a serious and heavy

argument in favor of

moving the se ntence to a lower level.

- 15 -No. 08-1336

USA v. Van
The court further explained its rea sons for not depar ting or vary

ing, noting Van’ s “continuing pattern of illega l behavior ,” including violating the conditions of his state parole by absconding twice in the previous five y ear s.
The district court’s discussion of the § 3553(a) fac tors indicates that it understood that it must
not rely on the Guidelines as rea sonable or mandatory but rathe r must consider all of the § 3553(a) fac tors to deter

mi n e a n a p p r o p r ia te sentenc e based on the individual circ umstances: “I ’ve considere d [t he § 3553(a) ] fac tors, including the nature and circ umstances of the offe nse and the life history of [Van]. I’v e also considered whether or not the sentenc e arrived at by the sentenc ing guidelines properly reflects the [§ 3553( a) factors] .” Cf. United States v. Simpson , 346 F. App’ x 10, 16 (6th Cir. 2009) (conc luding that the totality of the rec ord indicated that the district court misunderstood its authority despite the district court’s multipl e ref ere nces to the advisory nature of the Guidelines).
Contrary to Van’ s arg uments, the rec ord does n ot indicate that the district court misunderstood its senten cing authority when addre ssing his reque st for a varia nce based on his criminal history

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I I I

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For the above rea sons, we af firm Van’ s conviction and sente nce.

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