United States v. Martin , 239 F. App'x 202 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0579n.06
Filed: August 13, 2007
No. 06-5632
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
KEVIN MARTIN, )
)
Defendant-Appellant. )
_______________________________________)
OPINION
Before: GILMAN, GRIFFIN, Circuit Judges; ACKERMAN, District Judge.*
HAROLD A. ACKERMAN, District Judge. This case arises from a large
methamphetamine manufacturing conspiracy in Chattanooga, Tennessee. The district court had
jurisdiction pursuant to 18 U.S.C. § 3231 and this Court has jurisdiction pursuant to 28 U.S.C. §
1291.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
A. Factual Background
On February 21, 2006, this Court issued a decision on Defendant Kevin Martin’s prior
*
The Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.
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appeal from his sentence. See United States v. Martin, 438 F.3d 621 (6th Cir. 2006) (“Martin
I”). The substance of that Opinion will be addressed more fully below, but because the essential
facts have not changed, we repeat below Section I.B. from this Court’s prior Opinion:
The government charged Martin with five offenses relating to
the production of methamphetamine, all of which stem from two
incidents in late 2003. On November 24th of that year, Martin, who
was on supervised release for previous methamphetamine offenses,
rented a hotel room outside of Chattanooga, Tennessee. Law
enforcement officers learned of a possible methamphetamine
laboratory at the hotel and arrested five people found in a room rented
by Christi Kinsey. Among those people was Genea Davis, Martin’s
girlfriend, who consented to a search of the room that she was sharing
with Martin. In that room, the officers discovered a hot plate,
Coleman fuel, jars with multi-layered liquids, antifreeze, and a 1,000
milliliter flask-all materials commonly found in methamphetamine
labs. Subsequent tests confirmed that at least some of the materials
had been used to produce methamphetamine.
The government learned from Davis that several of the articles
recovered at the hotel belonged to Rory Shankles, another known
formulator of methamphetamine. Davis then led police to Shankles’s
residence, a location where Davis reported having seen Shankles and
Martin “cooking” methamphetamine two days earlier. Police
obtained a warrant and searched the premises, recovering 24 empty
bottles of pseudoephedrine, an over-the-counter decongestant that is
also a raw material used to manufacture methamphetamine. Those
bottles, when full, contained approximately 51 grams of
pseudoephedrine.
The second incident occurred on December 2, 2003, when
police searched an abandoned pickup truck that Martin had borrowed
from his friends. Officers found items in the truck similar to those
previously discovered during the search of the hotel room in
November, as well as 1.1 grams of methamphetamine residue
attached to coffee filters.
After Martin’s codefendants pled guilty to various
methamphetamine-related charges, a grand jury returned a
superseding indictment charging Martin with five counts stemming
from the production of methamphetamine and the use of a hotel room
as a methamphetamine lab. Martin entered a guilty plea to all five
counts on the day before his trial was scheduled to begin.
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The following is repeated verbatim from the Court’s prior Opinion Section I.C.:
The final PSR attributed to Martin 51 grams of
pseudoephedrine and 1.1 grams of seized methamphetamine. Martin
objected to the calculation of the drug quantity, arguing that the
Supreme Court’s intervening decision in Blakely v. Washington, 542
U.S. 296 (2004), barred the district court from accepting a quantity
that had neither been found by a jury beyond a reasonable doubt nor
admitted by Martin in his guilty plea. The government responded by
offering the testimony of Mitchell Smith, a member of the DEA task
force who worked on the case, as well as that of Christi Kinsey, one
of Martin’s coconspirators. These witnesses explained Martin’s ties
to the laboratory found in the hotel room and to the pseudoephedrine
bottles found at Shankles’s residence. The district court credited this
testimony in ruling that the amount from the empty bottles had
properly been attributed to Martin.
In calculating Martin’s criminal history category, the PSR
assessed one point for each of four car thefts occurring between
November 11 and December 4, 2000. Martin objected to these
assessments both in writing and at the sentencing hearing, arguing
that he had engaged in “a string of thefts or a common scheme to steal
autos,” all of which were “related” offenses for which he should have
been assessed only one point under U.S. Sentencing Guidelines
Manual § 4A1.2(a)(2). The district court rejected Martin’s argument,
observing that the offenses had taken place at different times and at
different locations, and that the state courts had not entered an order
consolidating the convictions. With Martin’s offense level and
criminal history category yielding a Guidelines range of 168 to 210
months, he was sentenced to 189 months in prison and 6 years of
supervised release.
B. Procedural History
Martin filed a timely appeal from his first sentence, which this Court addressed in a
published opinion on February 21, 2006. See Martin I. In that opinion, the Martin I court
affirmed the district court’s determination as to drug quantity, finding no error in the district
court’s reliance on U.S.S.G. § 2D1.1, which provides a ratio for converting a quantity of
pseudoephedrine to a marijuana equivalency. See id. at 635. The Martin I court also affirmed
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the district court’s calculation of Martin’s criminal history points. Id. at 639. However, the
Martin I court concluded that Martin’s sentence violated the intervening decision of United
States v. Booker, 543 U.S. 220 (2005), and the court thereby vacated the sentence and remanded
“for resentencing consistent with Booker.” Martin I, 438 F.3d at 639.
On April 19, 2006, the district court resentenced Martin under an advisory Guidelines
regime. Having been affirmed in its calculation of drug quantity and criminal history points, the
district court ultimately imposed the exact same sentence of 189 months imprisonment. Martin
filed this timely appeal. Martin argues that the district court’s factual findings in regard to empty
pill bottles found at one of the locations utilized in the conspiracy–the Iris Drive location–
violated his Sixth Amendment rights and that the district court’s sentence is unreasonable and
therefore violates Booker.
II. DISCUSSION
A. Standard of Review
“This [C]ourt reviews the district court’s application of the United States Sentencing
Guidelines de novo and the district court’s findings of fact at sentencing for clear error.” United
States v. Tocco, 306 F.3d 279, 284 (6th Cir. 2002); see also United States v. Hunt, 487 F.3d 347,
350 (6th Cir. 2007); United States v. Cousins, 469 F.3d 572, 575 (6th Cir. 2006). This Court
reviews the district court’s sentence for reasonableness. United States v. Jackson, 408 F.3d 301,
305 (6th Cir. 2005).
B. The Sixth Circuit’s presumption of reasonableness does not violate Booker
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Martin’s first argument is that the Supreme Court’s decision in “Booker determined that a
presumptive guideline system violated the Sixth Amendment.” (Martin Br. at 12.) Since Martin
filed this appeal, the Supreme Court has addressed this very issue of whether the law permits a
court of appeals to use a presumption that a sentence imposed within a properly calculated
Guidelines range is a reasonable sentence. See Rita v. United States, 551 U.S. ----, No. 06-5754,
2007 WL 1772146, at *3 (June 21, 2007). The Rita Court found that a court of appeals could use
such a presumption. See id. at *6 (“[A] court of appeals may apply a presumption of
reasonableness to a district court sentence that reflects a proper application of the Sentencing
Guidelines.”); United States v. Crowell, --- F.3d ----, 2007 WL 1814333, at *6 (6th Cir. June 26,
2007) (citing Rita); see also United States v. Sachsenmaier, --- F.3d ----, 2007 WL 1839282, at
*4 (7th Cir. June 28, 2007) (“[T]he Supreme Court has now expressly endorsed the rebuttable
presumption of reasonableness for appellate review of a district court’s sentencing decision.”).
Therefore, Martin’s first argument is without merit because the Supreme Court has definitively
held that this Circuit’s presumption of reasonableness does not violate the law.
C. Evidence obtained at the Iris Drive location was properly attributed to
Martin for purposes of calculating the appropriate Guidelines range
Martin also argues that his sentence violates his Sixth Amendment rights because the
district court made factual findings to which he did not plead guilty. Specifically, Martin
contends that the PSR inappropriately attributed to him 51 grams of pseudoephedrine based upon
a search of a residence at 8316 Iris Drive, Chattanooga, Tennessee (hereinafter “Iris Drive”).
Martin argued at his first sentencing that he did not participate in any illegal activities at the Iris
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Drive location and therefore any evidence obtained from there should not be attributed to him.
It is not clear whether Martin made this same argument on his previous appeal to this
Court such that the law of the case now prevents this Court from revisiting the issue. See Wilson
v. Morgan, 477 F.3d 326, 334 (6th Cir. 2007) (“The law of the case doctrine precludes
consideration of issues that have been decided in a previous appeal.”); United States v. Corrado,
227 F.3d 528, 533 (6th Cir. 2000) (“An earlier appellate court’s decision as to a particular issue
may not be revisited unless ‘substantially new evidence has been introduced, . . . there has been
an intervening change of law, or . . . the first decision was clearly erroneous and enforcement of
its command would work substantial injustice.’”) (quoting Miles v. Kohli & Kaliher Assocs.,
Ltd., 917 F.2d 235, 241 n. 7 (6th Cir. 1990).) The Martin I court did not specifically address
whether the evidence obtained from Iris Drive was properly attributable to Martin. Instead,
Martin I noted that Martin had objected to the “calculation of the drug quantity, arguing that the
Supreme Court’s intervening decision in Blakely v. Washington, 542 U.S. 296 (2004), barred the
district court from accepting a quantity that had neither been found by a jury beyond a reasonable
doubt nor admitted by Martin in his guilty plea.” Martin I, 438 F.3d at 626-27 (emphasis added).
But, in the same paragraph, the court in Martin I explained that the Government rebutted
Martin’s argument by calling a DEA agent and one of Martin’s co-conspirators, who explained
“Martin’s ties . . . to the pseudoephedrine bottles found at [Iris Drive].” Id. at 627. The Martin
I court further noted that “[t]he district court credited this testimony in ruling that the amount
from the empty bottles had properly been attributed to Martin.” Id. While it appears that this
Court, in Martin I, intended to affirm the district court’s attribution of the Iris Drive bottles to
Martin, it did not expressly make such a finding. As a result, we will address the issue in the first
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instance and not treat the issue as subject to the law of the case.
Instead of the attribution of the Iris Drive pseudoephedrine, Martin I addressed, as a
matter of first impression, whether the Guidelines correctly established ratios to estimate the
amount of methamphetamine that can reasonably be manufactured from certain precursor
chemicals. Martin I, 438 F.3d at 624. As the PSR explained, a search of Iris Drive resulted in 24
empty bottles of pseudoephedrine, each of which originally contained 36 pills that were 60
milligrams each. As a result, the combined total of 24 bottles yielded a total of 51.84 grams of
pseudoephedrine. At some point, the 51.84 grams were rounded down to 51, but the difference is
irrelevant to the actual calculation of Martin’s sentencing range.
As this Court noted in Martin I, Amendment 611 to Appendix C of the Guidelines
“provides a new chemical-quantity table for precursor chemicals like pseudoephedrine and a
conversion table for those chemicals.” Martin I, 438 F.3d at 625 (citing U.S.S.G., App. C,
Amendment 611 (Nov. 1, 2003)). “These tables adopt a 50% conversion ratio for
pseudoephedrine, such that 2 grams of the chemical is equivalent to 1 gram of
methamphetamine. That ratio was inserted into the tables in § 2D 1.1, cmt. n.10, which already
established that 1 gram of methamphetamine is to be treated as the equivalent of 20 kilograms of
marijuana for sentencing purposes.” Id. Therefore, “[s]ince the enactment of Amendment 611, .
. . 1 gram of pseudoephedrine is treated as the equivalent of 10 kilograms of marijuana.” Id.
As a result, Martin was held accountable for the equivalent of 510 kilograms of
marijuana, which resulted in a base offense level of 28. See U.S.S.G. § 2D1.1(c)(6) (establishing
base offense level of 28 if marijuana quantity is more than 400, but less than 700 kilograms).
The Martin I court found no constitutional violation in the 50% conversion ratio established by
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the Sentencing Commission and the court thereby affirmed the district court’s calculation
resulting in a base offense level of 28. See Martin I, 438 F.3d at 639. However, as noted above,
the Martin I court did not specifically address whether the pseudoephedrine found at the Iris
Drive location should have been attributed to Martin in the first place. Again, it is not clear that
Martin raised this argument in his first appeal, even though he preserved the issue for appeal by
objecting to such attribution at his first sentencing. (See, e.g., J.A. at 125, Tr. of First Sentencing
Hr’g at 18:2-4 (Sept. 27, 2004).)
In any event, Martin has raised the issue here after preserving it at his second sentencing.
(See J.A. at 147, Tr. of Second Sentencing Hr’g at 3:10-19 (Apr. 19, 2006).) As noted
previously, at the first sentencing, when Martin contested the attribution of evidence found at Iris
Drive, the Government called Christi Kinsey, a co-defendant who had pled guilty to the
methamphetamine manufacturing conspiracy. Kinsey testified at Martin’s first sentencing that
she had been involved in methamphetamine manufacturing with Martin at two locations, one of
which was Iris Drive, where she and Martin had performed the “gassing off” part of
methamphetamine manufacturing approximately four days prior to their arrest.1 Martin’s
attorney cross-examined Kinsey, but to no avail because the district court found Kinsey credible
on this issue and ultimately ruled that the bottles found at Iris Drive were properly attributed to
Martin. (J.A. at 132-33, Tr. of First Sentencing Hr’g at 25:21 to 26:5 (Sept. 27, 2004).)
At Martin’s second sentencing, his attorney sought a continuance so that he could secure
Kinsey’s presence to testify again. Martin’s attorney explained that since the first sentencing at
1
Hydrochloric acid is used to extract methamphetamine from pseudoephedrine. United
States v. Chamness, 435 F.3d 724, 725 (7th Cir. 2006). This method is often referred to as
“gassing off” because of the toxic gas created from the combination of chemicals.
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which Kinsey testified, Martin’s attorney had obtained a written statement, allegedly signed by
Kinsey, in which she stated that “Kevin Martin and I have never engaged in any illegal activity.”
(J.A. at 147, Tr. of Second Sentencing Hr’g at 3:18-19 (Apr. 19, 2006).) The Government
contested the Kinsey statement’s authenticity, but, after assuming it was authentic, the
Government pointed out that it was signed in March 2004 and that Kinsey had testified at
Martin’s first sentencing in September 2004. Understandably, the Government sought
clarification as to why Martin waited nearly two years to give his attorney an exculpatory
statement signed by Kinsey that was available for approximately six months prior to Martin’s
first sentencing. Martin’s attorney did not offer any explanation.2 Ultimately, the district judge
stated: “I’m just going to say that it’s not my plan to revisit the Guidelines determinations at this
point. . . . But even if I were to revisit the Guidelines, I don’t think I’d change them based upon
this alleged supposed statement that Christi Kinsey made before she testified here at the [first]
sentencing hearing.” (Id. at 153, Tr. of Second Sentencing Hr’g at 9:6-12 (Apr. 19, 2006).)
This Court now expressly affirms the district court’s determination that the Iris Drive
evidence was properly attributable to Martin because he pled guilty to Counts 3 and 5 of the
Superseding Indictment, which charged that on or about November 24, 2003, and on or about
December 2, 2003, in the Eastern District of Tennessee Martin “did knowingly and intentionally
2
Notably, Kinsey pled guilty to the conspiracy to manufacture methamphetamine on
March 15, 2004. While the Kinsey statement offered at Martin’s second sentencing was
allegedly signed in March 2004, the exact date is never mentioned and the letter is not in the
record. If it was authentic and signed prior to her guilty plea, then Martin faces an additional
hurdle in that any statement of innocence prior to March 15 arguably is superseded by the plea
entry of that day. But even if Kinsey signed the exculpatory statement after March 15, Martin
still has a credibility problem, i.e., why would Kinsey plead guilty and then say she was innocent
a few days later without attempting to withdraw her guilty plea?
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possess equipment, chemicals, products, and materials which may be used to manufacture
methamphetamine” in violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2. (J.A. at 56-57.)
Counts 3 and 5 did not limit the location of where Martin possessed such equipment, chemicals,
products, and materials. Thus, Martin’s connection with the conspiracy combined with the
evidence found at the various locations utilized by him and his co-conspirators supports the
district court’s conclusion that the Iris Drive evidence is properly attributable to Martin.
In addition, the district court did not err in crediting the testimony of Kinsey, along with
Officer Mitchell Smith, in finding the Iris Drive evidence attributable to Martin. Moreover,
Martin’s argument that his Sixth Amendment rights were violated by attributing the Iris Drive
evidence to him based upon Kinsey’s “unreliable” testimony is unavailing because he has failed
to proffer any reason, much less evidence, as to why the exculpatory Kinsey statement was not
revealed at or prior to the first sentencing, at which Kinsey testified. Therefore, this Court
affirms the district court’s Guidelines calculation, which resulted in a criminal history category of
V, base offense level of 28, and a total offense level of 31, yielding a suggested sentencing range
of 168-210 months imprisonment.
D. Martin has failed to rebut the appellate presumption of reasonableness
Martin’s final argument is that the district court’s sentence of 189 months imprisonment
is unreasonable, regardless of whether it was within the appropriate Guidelines range. As this
Court recently held, when the district court sentences a defendant within the advisory Guidelines
range, his sentence is credited with a rebuttable presumption of reasonableness and it is therefore
incumbent upon the defendant to establish that his sentence was unreasonable. See United States
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v. Crowell, --- F.3d ----, 2007 WL 1814333, at *6 (6th Cir. June 26, 2007) (citing Rita, 551 U.S.
----, No. 06-5754, 2007 WL 1772146, at *6-7; United States v. Williams, 436 F.3d 706, 708 (6th
Cir. 2006)).
Martin asserts that the district court “viewed the Guidelines as presumptively reasonable,
and as a consequence, failed to properly consider the other § 3553(a) factors as required.”
(Martin Br. at 20.) Martin is no doubt correct that the presumption of reasonableness is an
appellate presumption only and a district court is not permitted to presume that a sentence within
the Guidelines is reasonable, but instead must make an independent inquiry utilizing the
appropriate § 3553(a) factors. See Rita, 551 U.S. ----, No. 06-5754, 2007 WL 1772146, at *9
(“[T]he sentencing court does not enjoy the benefit of a legal presumption that the Guidelines
sentence should apply”) (citing Booker, 543 U.S. at 259-60); see also United States v. Buchanan,
449 F.3d 731, 734 (6th Cir. 2006) (holding that “trial judges may not give an irrebuttable
presumption of reasonableness to a guidelines sentence” because “[s]uch an approach cannot be
squared with Booker”).
Thus, it is necessary to review the district court’s sentencing reasoning to determine
whether it properly utilized and applied the § 3553(a) factors. Martin argues that the district
court’s “sentencing method . . . directly contravenes Booker, 18 U.S.C. § 3553(a), and [the Sixth
Circuit’s] prior holdings that district courts are to consider all the § 3553(a) factors in arriving at
a sentence sufficient to, but not greater than necessary, to comply with the purposes of §
3553(a).” (Martin Br. at 20-21 (emphasis in original).) Martin is correct that a “sentence is
unreasonable when the district judge fails to ‘consider’ the applicable Guidelines range or
neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects
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what the judge deems an appropriate sentence without such required consideration.” United
States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005); see also United States v. Morris, 448 F.3d
929, 931 (6th Cir. 2006).
However, “‘there is no requirement that the district court engage in a ritualistic
incantation of the § 3553(a) factors it considers.’” United States v. McBride, 434 F.3d 470, 474
(6th Cir. 2006) (quoting United States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005)); see also
Crowell, --- F.3d ----, 2007 WL 1814333, at *6. In addition, this Court has expressly declared
that a “district court need not explicitly reference each of the § 3553(a) factors in its sentencing
determination.” United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006). Moreover, this Court
has previously approved a sentence that did not result from an explicit consideration of each
factor. United States v. Dexta, 470 F.3d 612, 615 (6th Cir. 2006) (“Undeniably, the district court
did not explicitly consider each and every § 3553(a) factor. Although a more specific discussion
of the relevant factors would have been preferable, the record is nevertheless sufficient to allow
for meaningful appellate review.”). Thus, Martin’s argument that the district court failed to
consider all of the § 3553(a) factors is unavailing because it appears to be an argument premised
on the fact that the district court did not explicitly reference each factor.
Indeed, the district court considered several of the § 3553(a) factors, including the
characteristics of the defendant–§ 3553(a)(1)–by noting that Martin was “a chronic meth user, as
well as a manufacturer.” (See J.A. at 155-56, Tr. of Second Sentencing Hr’g at 11:23 to 12:5
(Apr. 19, 2006).) Moreover, as the district court explained, “this case . . . is the second meth case
[Martin’s] had in this court. He was operating basically on a fairly large scale here.” (Id. at 156,
12:3-5.) These findings demonstrate that the district court was concerned with Martin’s
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addiction as well as his entrepreneurial initiative in creating significant quantities of this illegal
drug. The district court’s statements indicate that it also was concerned with the size of the
conspiracy and the fact that Martin had not learned his lesson from his previous conviction for
the same drug crime in the same district court.
In addition, the district court considered the need to protect the public–§
3553(a)(2)(C)–from Martin, a recidivist. The district court explained that “[d]rug tests taken
during [Martin’s] supervised release the last time show that he was a user and when he was
arrested here, he basically was out of control, and could have hurt somebody.” (Id. at 156, 12:6-
10.) It almost goes without saying that a chronic drug addict, such as Martin, does not operate
with full faculties, and such volatility in an individual poses a danger to the public.
The district court also noted the seriousness of the offense–§ 3553(a)(2)(A)–by stating
that “[a] number of lives have been severely wrecked or at least damaged as a result of Mr.
Martin’s activity. Children were endangered. That’s another factor.” (Id. at 156, 12:10-13.)
Again, the district court’s statement that the impact of Martin’s criminal activity on numerous
individuals, including children, indicates that Martin’s crime was not a minor matter, but a
serious offense for which serious consequences should result. In addition, the district court
recognized the need to provide Martin with appropriate medical and correctional treatment–§
3553(a)(2)(D)–by the fact that it explicitly recommended the 500 hour residential in-house
treatment program for drug addicts. (Id. at 157-58, 13:25 to 14:1.)
The district court further explained that “this [case] is not out of the ordinary,” and then
ultimately imposed a sentence of 189 months imprisonment. (See id. at 157, 12:2-3.) Martin has
failed to proffer any reason, pursuant to the § 3553(a) factors, as to why his sentence is
13
unreasonable. Indeed, the district court’s statement that this case is “not out of the ordinary” is
prescient given the Supreme Court’s holding in Rita that a district court’s sentence within the
applicable Guidelines range will usually be reasonable in the “typical,” “heartland” or “mine run”
of cases. See Rita, 551 U.S. ----, No. 06-5754, 2007 WL 1772146, at *8, 5, 13. Moreover, as the
Rita Court explained, “a statement of reasons is important. . . . [insofar as t]he sentencing judge
should set forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Id.
at *12. Martin has failed to provide any explanation of what factors the district court did not
consider, much less how a consideration of them should have affected the district court’s
decision. Therefore, we hold that the district court set forth a sufficient statement of reasons for
imposing a sentence of 189 months on Martin because the district court analyzed the facts
through the lens of § 3553(a) by reflecting on the seriousness of the offense, the characteristics of
the defendant, the need to protect the public, and the defendant’s need for drug treatment.
III. CONCLUSION
For the foregoing reasons, the district court’s sentence is hereby AFFIRMED.
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