United States v. Thompson , 218 F. App'x 413 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0147n.06
Filed: February 22, 2007
No. 05-3728
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DAMON M. THOMPSON, ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: SILER, MOORE, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Damon M. Thompson appeals the 192-month sentence he
received following his guilty plea to the charges of conspiracy to distribute over five kilograms of
cocaine and using a firearm in relation to drug trafficking. Thompson argues that this sentence is
unreasonable because it is unwarrantedly disparate from the sentence of fifty-five months his co-
conspirator, Ali Jefferson, received for the same conspiracy charge. Because Thompson’s sentence
was within the applicable Guidelines range, his sentence is presumptively reasonable. Additionally,
the disparity between the sentence Thompson received and the sentence Jefferson received is not
1
No. 05-3728
USA v. Thompson
unreasonable in light of the additional charge against Thompson and Thompson’s more extensive
criminal history. The sentence imposed by the district court is, therefore, affirmed.
I.
The charges against Thompson arise from his attempt to purchase cocaine from a distributer
in Arizona in order to resell the cocaine in Ohio. In March of 2004, Thompson contacted an
individual in Tucson whom Thompson believed to be a cocaine distributer. That individual was, in
fact, an undercover DEA agent. Thompson traveled to Tucson twice to negotiate the purchase of
fifty kilograms of cocaine, which was to be delivered to him in Columbus. On April 20, two
undercover agents from Tucson met with Thompson in Columbus to finalize plans for the delivery
of the cocaine. Ali Jefferson, whose involvement in the purchase was previously unknown to the
agents, joined Thompson at this meeting. During that meeting it was determined that Jefferson’s
Lexus SUV would be given to the undercover agents as part of the down payment for the cocaine.
The agents took the SUV that evening and arranged for Thompson and Jefferson to meet them at a
hotel in Columbus the next day. When Thompson and Jefferson arrived at the hotel, Jefferson
remained in the lobby while Thompson went upstairs to meet one of the undercover agents. While
Thompson met with the agent to complete the transaction, Jefferson was led to a disabled vehicle
that supposedly contained the cocaine. Thompson was arrested as he counted out the purchase
money. At the time of his arrest, Thompson had a loaded Glock 45-caliber pistol on his person.
Jefferson, who was not armed, was arrested as he attempted to enter the disabled vehicle.
-2-
No. 05-3728
USA v. Thompson
In June 2004, Jefferson waived indictment and, pursuant to a plea agreement, pled guilty to
one count of conspiracy to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846
and two criminal forfeiture counts. In February 2005, United States District Judge Gregory L. Frost
sentenced Jefferson to fifty-five months incarceration.
Thompson was indicted by the Grand Jury on August 12, 2004. On December 17, 2004,
pursuant to a plea agreement, Thompson pled guilty to one count of conspiracy to possess with intent
to distribute over five kilograms of cocaine under 21 U.S.C. § 846, one count of possession of a
firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(c)(1)(A), one count of
forfeiture under 21 U.S.C. § 853(a)(2), and one count of forfeiture of a firearm under 18 U.S.C. §
924(d)(1). On May 11, 2005, the Government filed a motion for downward departure for substantial
assistance on behalf of Thompson. The presentence investigation report (PSIR) determined that
Thompson had an adjusted offense level of thirty-three and a criminal history of IV as to Count One,
the conspiracy to distribute charge, resulting in a Guidelines range of 188-235 months. Count Two,
possession of a firearm in furtherance of a drug trafficking offense, required a mandatory consecutive
term of not less than sixty months.
On May 12, 2005, the district court held a sentencing hearing for Thompson during which
the court considered a number of requests for downward departure under the Guidelines. First,
Judge James L. Graham considered Thompson’s argument that Jefferson’s fifty-five month sentence
and the sentences imposed in two other cases involving similar charges justified a downward
departure to avoid unwarranted disparity. In rejecting Thompson’s disparity argument, the district
-3-
No. 05-3728
USA v. Thompson
court referred to “the fact that Mr. Thompson’s criminal history is much more extensive than his
codefendant in this case.” Second, the court rejected Thompson’s requests for departures because
of the harshness of Thompson’s presentence confinement and physical impairment, Thompson’s
family background, and his allegation of third-party coercion. Third, the court granted a downward
departure because the price of the cocaine involved in this transaction was below market and granted
the Government’s motion for downward departure, resulting in a final total offense level of twenty-
nine.
Having determined the applicable Guidelines range, the district court then heard general
arguments on the appropriate sentence. In this non-Guidelines context, Thompson again asked the
court to consider the avoidance of sentencing disparity and the other issues that he had raised as
grounds for departure under the Guidelines. In arriving at Thompson’s sentence, the district court
observed that “previous sentences have not afforded adequate deterrence for this defendant” and
found that Thompson “represented a substantial risk for recidivism.” The court imposed a sentence
of 132 months for Count One, which was within the applicable Guidelines range of 121-151 months.
The court also imposed a consecutive sentence of sixty months for Count Two. Thompson now
brings this timely appeal, in which he argues that the district court erred in not giving him a sentence
that was in relative parity with the sentence Jefferson received.
II.
-4-
No. 05-3728
USA v. Thompson
Thompson’s sentence is not unreasonable because the district court properly considered the
alleged disparity between his sentence and his co-defendant’s sentence in the context of a possible
Guidelines departure and again when weighing the factors in 18 U.S.C. § 3553(a). “The sentence
imposed by the district court is reviewed for reasonableness and must be affirmed if it is reasonable.
A sentence falling within the relevant Guidelines range is entitled to a rebuttable presumption of
reasonableness.” United States v. Carson, 469 F.3d 528, 530-531 (6th Cir. 2006) (citing United
States v. Williams, 436 F.3d 706, 707-08 (6th Cir. 2006)). This court reviews sentences for both
procedural reasonableness and substantive reasonableness. United States v. Collington, 461 F.3d
805, 808 (6th Cir. 2006).
The sentence imposed by the district court is procedurally reasonable because the district
court properly calculated the applicable Guidelines range and, recognizing the non-mandatory nature
of the Guidelines, considered the other factors listed in 18 U.S.C. § 3553(a). See United States v.
Webb, 403 F.3d 373, 383 (6th Cir. 2005). While the primary thrust of Thompson’s argument on
appeal involves the substantive reasonableness of the disparity between the sentence that he received
and the sentence his co-conspirator received, Thompson also argues that the district court failed to
consider whether a lower sentence was sufficient to satisfy the sentencing goals in 18 U.S.C. §
3553(a). Contrary to Thompson’s assertion, the district court expressly considered “the kinds of
sentences that are afforded in this case,” including the possibility of a lower sentence, but found that
the circumstances of this case did not justify a lower sentence. Therefore, while consideration of the
-5-
No. 05-3728
USA v. Thompson
§ 3553(a) factors “need not be evidenced explicitly,” the record here clearly reflects that the district
court considered Thompson’s arguments for a lower sentence. Williams, 436 F.3d at 708.
Thompson’s sentence is also substantively reasonable because the disparity between
Thompson’s sentence and the sentence imposed on his co-conspirator is not unreasonable in light
of the dissimilarities between the two defendants. Thompson’s relies on 18 U.S.C. § 3553(a)(6),
which provides that one of the factors that a court must consider when imposing a sentence is “the
need to avoid unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct.” However, in a case reversing a below-Guidelines departure
prior to Booker, this court reasoned that “[t]he objective of this statute is not to eliminate sentence
disparities between defendants of the same case who have different criminal records; rather, the
objective is to eliminate unwarranted disparities nationwide.” United States v. LaSalle, 948 F.2d
215, 218 (6th Cir. 1991) (internal quotation marks and citation omitted). This court in LaSalle
observed that “to reduce a defendant’s sentence because of a perceived disparity between the
sentences of one defendant and that of his co-defendant in the same case creates a new and
unwarranted disparity between that first defendant’s sentence and the sentences of all the defendants
nationwide who are similarly situated.” Id. See also United States v. Epley, 52 F.3d 571, 584 (6th
Cir.1995) (relying on LaSalle and holding that a downward departure could not be supported solely
by a disparity between the defendant’s sentence and the sentences of unindicted co-conspirators).
While these cases were decided in the context of unwarranted departures prior to Booker, the fact
-6-
No. 05-3728
USA v. Thompson
that they purported to interpret 18 U.S.C. § 3553 makes them of some relevance to the question of
reasonableness in the post-Booker advisory Guidelines context.
However, even if disparity between co-defendants could result in an unreasonable sentence
after Booker in some cases, that would not be the case here because Thompson and Jefferson do not
have similar records. There are two significant differences between Thompson and his co-
conspirator that explain the disparity between their sentences. First, Jefferson was not armed during
the drug purchase from which the charges in this case arise. Therefore, only Thompson was charged
with possession of a firearm in furtherance of a drug trafficking offense,1 which charge resulted in
a mandatory consecutive sentence of “not less than 5 years.” 18 U.S.C. § 924(c)(1)(A)(i). This
additional charge accounts for nearly half of the difference between Thompson’s sentence and
Jefferson’s sentence.
A second difference between Thompson and Jefferson, which was recognized by the district
court, is that “Thompson’s criminal history is much more extensive than his codefendant in this
case.”2 It was not unreasonable for the district court to conclude that Thompson’s extensive
1
Thompson relies on United States v. Morrow, 977 F.2d 222 (6th Cir. 1992), to argue that
Jefferson was “equally culpable for the use of a firearm” and the additional sixty-month sentence for
Thompson was therefore unwarranted. However, in Morrow this court merely upheld the conviction
of an individual charged with aiding and abetting the use of a firearm in furtherance of a trafficking
offense. Id. at 230-31. Morrow did not deal with relative punishment levels for aiders versus
principals.
2
While Jefferson’s criminal history is not part of the record in this case, Thompson concedes
the existence of a disparity between his criminal history and Jefferson’s. Accordingly, Thompson’s
reliance on United States v. Tzoc-Sierra, 387 F.3d 978 (9th Cir. 2004) is misplaced. In Tzoc-Sierra,
-7-
No. 05-3728
USA v. Thompson
criminal history justified the additional seventy-seven months separating his sentence from
Jefferson’s sentence.
Because the additional charge against Thompson and Thompson’s extensive criminal history
justified the larger sentence Thompson received, no unwarranted disparity resulted from the district
court’s imposition of a sentence within the relevant Guidelines range. Thompson has, therefore,
provided this court with no reason to hold that the sentence imposed by the district court was
unreasonable.
III.
For the foregoing reasons, the sentence imposed by the district court is AFFIRMED.
the Ninth Circuit held that a downward departure was justified by the disparity between the sentence
imposed on the defendant-appellee and the sentences imposed on his co-defendants in the same case.
However, the court explicitly noted that the defendant-appellee in that case had “no criminal
history.” Id. at 981. The Ninth Circuit did not hold that disparate sentences for co-defendants with
different criminal histories and facing different charges would warrant a departure. Id.
-8-
No. 05-3728
USA v. Thompson
KAREN NELSON MOORE, Circuit Judge, concurring. Because Thompson had a more
extensive criminal history than his co-conspirator Jefferson, it is unnecessary to determine the effect,
if any, of our pre-Booker precedent cited in the majority opinion regarding the requirement in 18
U.S.C. § 3553(a)(6) that courts must consider in sentencing “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar conduct.”
As Thompson and Jefferson do not have “similar records,” there are no “unwarranted sentence
disparities” presented by Thompson that would trigger § 3553(a)(6). In my view, § 3553(a)(6) may
require comparison of sentences of co-participants in particular crimes “to avoid unwarranted
sentence disparities,” but we need not, and do not, reach that issue today because of the differences
between Thompson and Jefferson. With that understanding, I concur.
-9-