USA v. Malcolm Ro

Filing

Per Curiam OPINION filed : AFFIRMED; declaring as moot motion to dismiss - jurisdiction filed by Mr. Daniel R. Hurley, decision not for publication pursuant to local rule 206. Eugene E. Siler , Jr., Circuit Judge; Richard Allen Griffin, Circuit Judge and Arthur J. Tarnow, U.S. District Judge., EDM

Case: 10-3366

Document: 006111172499

Filed: 01/04/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0003n.06
No. 10-3366
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MALCOLM ROSS,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)

FILED

Jan 04, 2012
LEONARD GREEN, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE NORTHERN
DISTRICT OF OHIO

BEFORE: SILER and GRIFFIN, Circuit Judges; and TARNOW, District Judge.*

PER CURIAM.
Malcolm Ross appeals the district court’s judgment of conviction and sentence. The
government moves to dismiss his appeal based on an appellate-waiver provision in Ross’s plea
agreement.
Ross pleaded guilty to conspiracy to possess with intent to distribute cocaine base in violation
of 21 U.S.C. §§ 841(a)(1) and 846. The district court determined that his base offense level was 24.
The court subtracted two levels for acceptance of responsibility and two levels under the safety valve
provision in U.S.S.G. § 5C1.2, resulting in a total offense level of 20. Based on the total offense
level of 20 and a criminal history category of I, the court determined that Ross’s guidelines range of

*

The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.

Case: 10-3366

Document: 006111172499

Filed: 01/04/2012

Page: 2

No. 10-3366
United States v. Ross
imprisonment was 33 to 41 months. The court imposed a four-level upward variance, however, and
sentenced Ross to 63 months in prison.
The parties disagree as to whether the 63-month sentence exceeds “the maximum of the
guideline range determined under the advisory Sentencing Guidelines in accordance with the
sentencing stipulations and computations” in Ross’s plea agreement, and thus falls outside the scope
of the agreement’s appellate-waiver provision. We need not decide that issue, however, because
Ross’s appeal is readily resolved on the merits.
On appeal, Ross argues that his sentence was both procedurally and substantively
unreasonable. “A district court’s sentencing determination is reviewed under a deferential abuse-ofdiscretion standard for reasonableness, which has both a procedural and a substantive component.”
United States v. O’Georgia, 569 F.3d 281, 287 (6th Cir. 2009) (citation and internal quotation marks
omitted). To determine whether a sentence is procedurally reasonable, we must “ensure that the
district court committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence . . . .” Gall v. United States, 552 U.S. 38, 51 (2007). “For
a sentence to be substantively reasonable, it must be proportionate to the seriousness of the
circumstances of the offense and offender, and sufficient but not greater than necessary, to comply
with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (citation
and internal quotation marks omitted). “A sentence may be substantively unreasonable if the district
court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider

-2-

Case: 10-3366

Document: 006111172499

Filed: 01/04/2012

Page: 3

No. 10-3366
United States v. Ross
pertinent § 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.” Id.
at 510 (citation and internal quotation marks and alterations omitted).
Ross first argues that the upward variance rendered his sentence procedurally unreasonable
for two reasons: (1) the district court improperly based the variance on his false representations that
he had no prior convictions and that he never used an alias, which the court had found insufficient
to warrant an offense level enhancement under the guidelines; and (2) the court failed to adequately
explain its justification for imposing the variance using the factors set forth in § 3553(a). Ross
further argues that the extent of the variance rendered his sentence substantively unreasonable
because it resulted from the district court’s application of an unreasonable amount of weight to his
false representations, which had no material impact on his case.
The district court did not err by considering Ross’s false representations as a basis for an
upward variance, despite the fact that they did not result in an increased offense level under the
guidelines. See United States v. Tristan-Madrigal, 601 F.3d 629, 635 (6th Cir. 2010) (holding that
it is not abuse of discretion to impose an upward variance based on factors that would not justify an
upward departure from the guidelines). Further, the district court adequately explained that its
decision to vary upward was based on Ross’s repeated false representations, which were relevant
when considering the history and characteristics of defendant and the need to promote respect for
the law. See 18 U.S.C. § 3553(a)(1), (2)(A). Finally, the extent of the variance did not render Ross’s
sentence substantively unreasonable given his repeated false representations to Pretrial Services, the
Probation Office, and the magistrate judge.

-3-

Case: 10-3366

Document: 006111172499

Filed: 01/04/2012

Page: 4

No. 10-3366
United States v. Ross
Ross also argues that his sentence was rendered procedurally and substantively unreasonable
by the district court’s failure to properly consider both the sentencing disparity between offenses
involving crack and powder cocaine and the sentencing disparity resulting from the use of different
crack-to-powder ratios in cases involving crack cocaine. The district court considered the parties’
arguments concerning the appropriate crack-to-powder ratio, acknowledged its discretion to deviate
downward from the guidelines, and explicitly stated that it had no policy disagreement with the
guidelines ratio and that a deviation was unwarranted under the circumstances of Ross’s case. The
district court’s decision to accept the ratio utilized in the guidelines did not render Ross’s sentence
unreasonable. See United States v. Brooks, 628 F.3d 791, 800 (6th Cir.), cert. denied, 131 S. Ct.
3077 (2011).
Accordingly, we affirm the district court’s judgment and deny as moot the government’s
motion to dismiss.

-4-