United States of America v. William Clarke

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0888n.06
No. 10-2295
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM CLARKE,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
MICHIGAN
Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge.*
TARNOW, District Judge. Appellant William Clarke appeals from the district court’s denial
of his Motion for a Downward Variance. For the following reasons, we AFFIRM the district court’s
judgment.
I.
In 2009, agents of the Kalamazoo Valley Enforcement Team (“KVET”) received information
that Appellant was in the process of picking up cocaine from South Bend, Indiana. KVET agents
conducted surveillance of Appellant’s vehicle in Indiana. When Appellant’s vehicle entered
Kalamazoo County, Michigan, the agents executed a traffic stop. Upon searching Appellant’s
vehicle, agents discovered 988.96 grams of cocaine and $6,000.00. Appellant was arrested.
The Honorable Arthur J. Tarnow, Senior United States District Judge for the Eastern*
District of Michigan, sitting by designation.

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No. 10-2295, United States v. Clarke Page 2
Appellant elected not to make a statement without the presence of counsel and was subsequently
released without prosecution.
Agents subsequently obtained search warrants of three residences and one business linked
to Appellant. Following the execution of the warrants, Appellant voluntarily appeared for three
interviews with KVET agents during September, 2009. None of these interviews was conducted
pursuant to a proffer agreement.
On March 16, 2010, an indictment was filed in the United States District Court for the
Western District of Michigan charging Appellant with the possession with the intent to distribute
of 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). On
May 24, 2010, Appellant pled guilty to the indictment pursuant to a written plea agreement.
Prior to the sentencing hearing, a presentence investigation report (“PIR”) was prepared for
the district court calculating Appellant’s base offense level as 32. Three points were subtracted
based on Appellant’s acceptance of responsibility, resulting in a Total Offense Level of 29. The PIR
assigned Appellant a Criminal History Category of III based on four points of criminal history.
Three Criminal History Points were assigned based on Appellant’s 1992 guilty plea for
Delivery/Manufacture of a Controlled Substance/Narcotic (Cocaine) of Less than 50 Grams. One
Criminal History Point was assigned for Appellant’s 2007 guilty plea for possession of marijuana.
Based on Appellant’s Criminal History Category and Total Offense Level, the Sentencing
Guidelines recommend a range of 108 to 135 months (9 years to 11.25 years) incarceration. The
PIR recommended a sentence of 108 months (9 years). Appellant did not object to any aspect of the
PIR when given the opportunity to do so at the sentencing hearing, held on September 30, 2010.

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No. 10-2295, United States v. Clarke Page 3
At the sentencing hearing, Appellant argued that his cooperation with the investigation into
his activities had provided KVET agents with information that increased his Base Offense Level
from 26 to 32. Appellant’s counsel did not raise the other two issues Appellant now argues to
support a downward variance: that Appellant’s criminal history was overstated, and that the court
had the authority to grant a downward departure without motion by the government.
The district court discussed Appellant’s criminal history in detail, referencing Appellant’s
previous convictions, including the year of the convictions or violations of probation. The district
judge also twice criticized Appellant for testing positive for marijuana use in April of 2010. Finally,
the district court sentenced Appellant to 120 months (10 years) incarceration and rejected
Appellant’s motion for a downward variance.
II.
This Court reviews the sentencing decision of a district court for “reasonableness” under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007) (citing United States v.
Booker, 543 U.S. 220, 260-62 (2005)). The abuse-of-discretion standard is deferential, and contains
both a procedural and a substantive component. United States v. Alexander, 543 F.3d 819, 821-22
(6th Cir. 2008).
However, “‘[i]f a party does not clearly articulate any objection and the grounds upon which
the objection is based, when given [a] final opportunity [to] speak, then that party will have forfeited
its opportunity to make any objections not previously raised and thus will face plain error review on
appeal.’” Alexander, 543 F.3d at 822 (quoting United States v. Bostic, 371 F.3d 865, 872-73
(6th Cir. 2004) (alterations in original)). District courts, after pronouncing a sentence, should “ask
the parties whether they have any objections to the sentence just pronounced that have not previously

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No. 10-2295, United States v. Clarke Page 4
been raised.” Bostic, 371 F.3d at 872. “If a sentencing judge asks this question and if the relevant
party does not object, then plain-error review applies on appeal to those arguments not preserved in
the district court.” United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (citing
Bostic, 371 F.3d at 872-73). This approach is intended to facilitate the appellate process by
indicating “‘precisely which objections have been preserved.’” Vonner, 516 F.3d at 385 (quoting
Bostic, 371 F.3d at 873).
In the instant case, after the district judge announced his intention to sentence Appellant to
120 months (10 years) incarceration, he asked whether there was any “legal objection to the sentence
imposed not previously raised . . . .” Appellant’s counsel responded “No, Your Honor.”
Appellant argues that he did not need to object at sentencing because a party need not object
to “substantive unreasonableness to preserve the issue for appeal,” citing Vonner. It is true that a
party need not object to the reasonableness of the length of his or her sentence or to the presumption
that a within-guidelines sentence is reasonable at the district-court level. Vonner, 516 F.3d at 389.
As this Court explained “[t]hat is because reasonableness is the standard of appellate review, not the
standard a district court uses in imposing a sentence.” Id. (citing Rita v. United States, 551 U.S. 338,
351 (2007)) (emphasis in original)). Insofar as Appellant is arguing procedural error at sentencing,
we review for plain error. As for challenges to the length of the sentence, we review for abuse of
discretion.
Here, Appellant is not challenging the reasonableness of the length of his sentence. Rather,
Appellant challenges the district court’s explanation regarding its rejection of Appellant’s motion
for a variance, and the district court’s reliance on Appellant’s criminal record as a factor at
sentencing. These are precisely the issues that this Court applied plain-error review to in Vonner,

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No. 10-2295, United States v. Clarke Page 5
as they concern “the appropriate procedures at sentencing and the bases for a lower or higher
sentence.” Vonner, 516 F.3d at 391.
Because Appellant failed to preserve his objections at the sentencing hearing, this Court
reviews the district court’s decision for plain error.
III.
Appellant first argues that the district court failed to consider and explain its rejection of two
of the arguments presented in Appellant’s motion for a variance: Appellant’s cooperation with the
authorities, and that the court had the power to grant a variance without a 5K1.1 motion for a
downward departure from the government.
In deciding whether a sentence is procedurally reasonable, a district court should:
“(1) properly calculate[] the applicable advisory Guidelines range; (2) consider[] the
other § 3553(a) factors as well as the parties’ arguments for a sentence outside the
Guidelines range; and (3) adequately articulate[] its reasoning for imposing the
particular sentence chosen, including any rejection of the parties’ arguments for an
outside-Guidelines sentence and any decision to deviate from the advisory Guidelines
range.”
United States v. Garcia-Robles, 562 F.3d 763, 767 (6th Cir. 2009) (quoting United States v. Bolds,
511 F.3d 568, 581 (6th Cir. 2007)).
On appeal, the crucial question is whether the sentencing record “‘makes clear that the
sentencing judge listened to each argument,’ ‘considered the supporting evidence,’ was ‘fully aware’
of the defendant’s circumstances and took ‘them into account’ in sentencing him.” Vonner, 516 F.3d
at 387 (quoting Rita, 551 U.S. at 358). While a district court must give “the reasons” for its
sentence, a district court need not “give the reasons for rejecting any and all arguments by the parties
for alternative sentences.” Id. at 387. “The appropriateness of brevity or length, conciseness or

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No. 10-2295, United States v. Clarke Page 6
detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion
responds to every argument, sometimes it does not . . . .” Rita, 551 U.S. at 356.
Appellant’s position, both at the sentencing hearing and on appeal, is that his “immediate
cooperation” with authorities without the benefit of a proffer agreement warranted a downward
departure. Appellant contends that, while the district court acknowledged Appellant’s immediate
cooperation, it did not “explain why that component was being rejected.” Appellant is correct
insofar as the district judge focused more upon whether Appellant’s cooperation had been the only
source of incriminating information against him. The district judge criticized Appellant’s argument
that authorities had only known of past drug trafficking because of Appellant’s cooperation. The
district court specifically cited to paragraphs of the PIR that indicated that two individuals, during
proffer sessions, had alleged that Appellant was involved with drug trafficking and distribution. The
district judge did not further address Appellant’s cooperation.
The district judge’s rejection of Appellant’s cooperation argument was neither plain error nor
an abuse of discretion. Appellant’s argument relies on minutely compartmentalizing each portion
of Appellant’s overall contention that his cooperation warranted a downward departure. The district
judge listened to Appellant’s arguments, considered and disputed the evidence Appellant presented,
and rejected Appellant’s position. The district judge was not required to proceed through and reject
each component of Appellant’s argument a piece at a time. Appellant further argues that the district
judge did not “respond to the Appellant’s challenge” to the district judge’s use of the proffers
described in the PIR. This is incorrect; the district judge clearly did not agree with Appellant’s
characterization of the evidence and chose to reject Appellant’s argument.

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No. 10-2295, United States v. Clarke Page 7
Appellant also argues that the district court did not “address . . . at all” Appellant’s argument
that “a sentencing court can consider cooperation as a reason to grant a variance even though the
government has not filed a 5K1.1 departure motion.” Appellant did not raise this argument at the
hearing. A district court need not “give the reasons for rejecting any and all arguments by the parties
for alternative sentences.” Vonner, 516 F.3d at 387. In this case, it is clear that the district court was
aware it had the ability to grant a variance from the guidelines despite the lack of a motion for
downward departure from the government. The district court considered and rejected the motion for
variance. It would have made little sense for the district court to consider and deny a motion that the
court felt it could not grant. The district court neither committed plain error nor abused its discretion
when it did not explicitly state that it was aware that it could grant a variance from the guidelines
without a motion for downward departure from the government.
IV.
Appellant next argues that the district court erred when it “based its sentencing decision
almost exclusively on the Appellant’s prior record.” This argument rehashes Appellant’s argument
in his original motion that his criminal history was overstated. Appellant’s argument has two parts.
First, Appellant argues that the Criminal History Report overstates his record. Appellant argues that
one conviction, for which he received three Criminal History Points, occurred in 1994 when
Appellant was 19. Appellant also argues that he was on the “low end” of the of Criminal History
Category III, and that the one point that moved Appellant from Category II to Category III was due
to a possession of marijuana conviction. However, as Appellant acknowledges, “[t]he sentencing
court rejected these arguments and took the position that the Appellant’s criminal history was more
serious than it appeared from the Appellant’s arguments.” Thus, as required by Vonner, the district

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No. 10-2295, United States v. Clarke Page 8
court listened to Appellant’s arguments, considered the evidence against him, and took these factors
into account in sentencing Appellant. The district court’s reliance on the PIR’s calculations (none
of which Appellant disputes) and rejection of Appellant’s argument were not plainly erroneous or
an abuse of discretion.
Second, Appellant argues that the district court’s reasons for sentencing Appellant to
120 months (10 years) were “vague and did not clearly explain the decision reached by the Court.”
Appellant argues that the district court’s characterization of Appellant’s “repetitive drug convictions”
is misplaced, as Appellant “had been free of trouble since 1998," “with the one exception in 2007,"
which was “of a completely different nature” than Appellant’s other drug convictions. Appellant
also argues that the court “did not consider the age of two of the convictions, the conviction-free
period, or the relatively minor nature of the 2007 conviction.”
The district court was familiar with Appellant’s criminal history and discussed the history
in detail at the Sentencing Hearing. Appellant’s argument simply substitutes Appellant’s judgment
about his past convictions for that of the district court. The district court was not plainly erroneous
and did not abuse its discretion in placing weight on Appellant’s past criminal history.
V.
Because the district court considered Appellant’s arguments, reviewed the evidence, and
adequately explained its reasons for sentencing Appellant to 120 months (10 years) incarceration,
we affirm the district court’s rejection of Appellant’s motion for variance.
AFFIRMED.

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