UNITED STATES of America, Plaintiff-Appellee, v. Jerry GUNTER, Defendant-Appellant, 620 F.3d 642

MARTIN, J., delivered the opinion of the court, in which KETHLEDGE, J., joined. CLAY, J. (pp. 648-50), delivered a separate opinion concurring in part and dissenting in part. OPINION BOYCE F. MARTIN, JR., Circuit Judge. Defendant-appellant Jerry Gunter pled guilty to drug-related charges and was sentenced to ninety-six months in prison. He primarily appeals the procedural and substantive reasonableness of his sentence. He also appeals his conviction, contending that his guilty plea was not entered into knowingly and intelligently. We AFFIRM. I.

Gunter was indicted as part of a large drug distribution conspiracy in Wayne County, Michigan, known as the “575 Gang.” The gang had a rather sophisticated business model. Customers would call “customer service” numbers to place orders for crack or powder cocaine. A gang member would direct the customer to a meeting place and would then dispatch a delivery vehicle with the drugs. The customer and the delivery driver would conduct the transaction through the car windows. When the delivery vehicle ran low on drugs, it would return to the distribution hub for restocking.

These vehicles operated twenty-four hours per day, seven days per week, and routinely sold several thousand dollars’ worth of drugs per day. Gunter drove one of these delivery vehicles and sold small amounts of crack cocaine to undercover agents on three occasions. Gunter initially pled not guilty and was released on an unsecured bond. After repeated inability to abide by the terms of his release, Gunter’s bond was revoked. He thereafter pled guilty.

A worksheet attached to his plea agreement estimated that his sentence would be sixty months in prison, which was the mandatory minimum for the offense of conviction, but it made clear that sixty months was just an estimate and that his sentence could be as high as forty years. The plea agreement also obliged the government to move for a three-level decrease in Gunter’s offense level for acceptance of responsibility and substantial assistance. The government followed through on its commitment, and Gunter joined the motion.

The pre-sentence investigation report calculated Gunter’s advisory Guidelines range as seventy to eighty-seven months, noticeably higher than the previously estimated sixty months. The increase was primarily due to the discovery of significantly more prior convictions than what had been reflected in the plea agreement. Gunter did not object to counting these prior convictions in his criminal history score. The court set a sentencing hearing for April 10, 2008. It is evident from the transcript of this hearing that the court had devoted significant time and attention preparing for this hearing.

Almost immediately, the court expressed a great degree of hesitation regarding the joint motion for an offense-level reduction for acceptance of responsibility and substantial assistance. Denying the motion would have resulted in a Guidelines range higher than the seventy to eighty-seven months calculated by the presentence report. The court indicated that it saw Gunter’s post-arrest actions as incommensurate with an entitlement for a reward. However, the court recognized that the motion was a condition of Gunter’s plea.

So, instead of denying the motion, which would have resulted in a higher Guidelines range, or granting the motion, which would have resulted in the court’s pronouncing sentence on a basis with which it was not completely comfortable, the court chose a laudable third course. It suggested that perhaps defense counsel should move for a continuance, during which time defense counsel and the prosecutor could put their heads together to come up with a way to convince the court to grant the offense-level reduction. Counsel took the cue and the court granted the continuance.

By the date the court reconvened the sentencing hearing, counsel had submitted additional argument in support of the offense-level reduction. Again, it is apparent that the court devoted significant time and effort to studying the case, and ruled that it would allow the defense level reduction on the basis of the supplemental argument. This resulted in a final advisory Guidelines range of seventy to eighty-seven months. The court then announced its inclination to vary above the Guidelines range, but it allowed counsel and Gunter an opportunity to argue in mitigation.

After hearing the respective arguments and discussing the factors set forth at 18 U.S.C. § 3553(a), the court imposed a sentence of ninety-six months in prison. In explaining its decision, the court focused primarily on Gunter’s extensive criminal history and what it saw as his continued failure to respect the law, as evidenced by his post-arrest lawlessness that resulted in the revocation of his bond. The court also specifically explained that it would have varied above the Guidelines even had it denied the acceptance of responsibility credit, which would have resulted in an even higher sentence.

Gunter now timely appeals. II. A. Reasonableness of Sentence The touchstone of appellate review of a district court’s sentencing decision is reasonableness, a concept that has both a procedural and a substantive component. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Grossman, 513 F.3d 592, 595 (6th Cir.2008). We typically employ the abuse of discretion standard to reasonableness review. United States v. Thompson, 515 F.3d 556, 560 (6th Cir. 2008).

However, where, as here, the defendant fails to lodge any objection at the end of the sentencing hearing in response to a properly worded invitation from the court in compliance with United States v. Bostic, 371 F.3d 865 (6th Cir.2004), we review only for plain error a challenge to the district court’s explanation for the sentence selected. United States v. Vonner, 516 F.3d 382, 385-86 (6th Cir.2008) (en banc).

Accordingly, with respect to Gunter’s procedural claim, it is his burden to show (1) error, (2) that was obvious or clear, (3) that affected his substantial rights, and (4) affected the fairness, integrity, or public reputation of his judicial proceedings. 1. Procedural Reasonableness Gunter set forth numerous arguments in mitigation of his sentence. Three of these arguments were (1) his strong family ties, (2) his recognition of his serious drug problem and his need for help, and (3) his minor role in the overall operation of the 575 Gang.

Gunter contends that the court committed procedural error by failing to explain adequately its reason for rejecting these arguments. We immediately reject one third of this argument-that the court failed to explain why it was not persuaded that Gunter’s drug problem counseled in favor of leniency. After reciting Gunter’s numerous run-ins with the law, the court specifically stated, “If you were under the influence of drugs during this entire period of time from when you were 19 until you were 22 or 23 years of age, perhaps that could explain these kinds of things.

But what I’m seeing is a pattern of very aggressive and oppositional behavior when you’re confronted by anyone representing law enforcement interests.” (Sent. Tr., 5/15/08, at 21:15-20.) It is thus clear that the court responded directly to Gunter’s argument about his drug addiction and found it unpersuasive because it cannot account for all of Gunter’s actions. However, as to the other two mitigation arguments, we agree that it would be a stretch to say that the court specifically and explicitly responded to them at any point during its explanation of its ruling.

It is well established that, as part of its sentencing procedure, a court must consider all non-frivolous arguments in support of a lower sentence. United States v. Blackwell, 459 F.3d 739, 774 (6th Cir.2006) (“[T]he black letter law of this Circuit requires district courts to consider all factors brought to their attention by a defendant.”). However, our cases are less than clear as to what must be the product of that consideration in order to allow for meaningful appellate review of the court’s reasoning.

Are we to review the sentencing transcript with a focus on function, meaning that it must only be clear that the court listened to and considered the arguments and then explained its reason for imposing whatever sentence it decided upon?

The Supreme Court seems to say as much: while “[t]he appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances ... [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.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

And we have formulated the inquiry in virtually the same way: “The question in each case ‘is whether the 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.’ ” United States v. Gapinski 561 F.3d 467, 474 (6th Cir.2009) (quoting Vonner, 516 F.3d at 387) (internal quotation marks omitted) (alteration in Vonner).

Or do we require something more formal or formulaic, meaning that the court must respond to mitigation arguments point-by-point, a la “You have argued A; I am not persuaded because B. You have argued X; I am not persuaded because Y.”? In United States v. Caver, we stated that the sentencing court “must articulate its reason for choosing a particular sentence, and it must specifically address any argument raised by the defendant at sentencing.” 470 F.3d 220, 248 (6th Cir.2006) (emphasis added).

But this pronouncement begs the question of what it means to “address” an argument and, in any event, pre-dates the Supreme Court’s formulation in Rita. Less ambiguous, at least at first blush, is our statement in United States v. Garcia-Robles: the district court is “required to consider, and to explain its rejection of, any non-frivolous arguments against the upward variance.” 562 F.3d 763, 767 (6th Cir.2009) (emphasis added). This pronouncement certainly suggests that a point-by-point discussion is required. However, the Garciar-Robles Court made this statement in a unique context.

There, the primary issue was whether the defendant was given a meaningful opportunity to argue against an upward variance because he was not aware that the court was considering an upward variance. Id. When the court has given notice of intent to vary, the aggrieved party can offer argument against the variance before a final decision, and the court can then explain why it is nevertheless going forward with the variance, if it so chooses. In short, Garciar-Robles was about a defendant’s inability to argue in the first place, not about the sufficiency of the court’s response.

We believe that the better reading of these authorities is that our focus is functional in nature. The court must conduct a meaningful sentencing hearing and truly consider the defendant’s arguments. United States v. Wilson, 614 F.3d 219, 226-27 (6th Cir.2010) (Martin, J., concurring). On appeal, we must determine whether, based on the entirety of the sentencing transcript and written opinion, if any, we are satisfied that the district court fulfilled this obligation. We are to focus less on what the transcript reveals that the court said and more on what the transcript reveals that the court did.

With this as our understanding of our task, we are easily satisfied that the court fulfilled its procedural duties in sentencing Gunter. As stated above, it is obvious from a review of the two sentencing transcripts that the court spent considerable time and effort on this case. The court displayed an uncommon familiarity with the facts from the outset of the hearings, engaged in a back-and-forth with counsel and Gunter, and explained the reason for its decision in a clear and straightforward manner. Furthermore, while the court perhaps could have said more, it certainly could have done less.

Though it was under no duty to do so, the court took the time to convene a second hearing to allow Gunter to make additional argument regarding the offense-level reduction, a decision which clearly inured to Gunter’s benefit. On this basis, we can comfortably conclude that the court meaningfully considered Gunter’s case and mitigation arguments. 2. Substantive Reasonableness In selecting a sentence, the court must consider the factors set forth in

section 3553(

a) and arrive at a sentence “sufficient, but not greater than necessary, to comply with” those factors. 18 U.S.C. § 3553(a). A sentence will be deemed substantively unreasonable if the court “select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent § 3553(

a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006) (citations omitted) (alterations in original). Gunter claims that the court erred by placing “an unreasonable amount of weight” upon his criminal history. In so doing, Gunter conflates facts with factors. It is an undeniable fact that Gunter had a lengthy and alarming criminal history, and that this background caught the court’s attention. But one fact may bear upon more than one of the

section 3553(

a) factors. Here, in deciding to impose a lengthy sentence, the court discussed Gunter’s criminal history in relation to the need to promote respect for the law, the need for specific deterrence of future criminal conduct by Gunter, and the need to protect the public from Gunter’s recidivist tendencies. It cannot be said that a lengthy criminal history is irrelevant to these factors, so we are satisfied of the sentence’s substantive reasonableness. B. Validity of Guilty Plea We review de novo whether a plea was entered into voluntarily, knowingly, and intelligently. United States v.

Jones, 403 F.3d 817, 822-23 (6th Cir.2005). Gunter contends that he did not voluntarily, knowingly, and intelligently plead guilty because he did not realize “the likely consequences of his plea, i.e., that his sentence would be 96 months [sic] imprisonment.” (Appellant’s Br. at 13.) Instead, Gunter contends, he was under the impression that his maximum sentencing exposure was sixty months, the statutory minimum for the crime to which he pled guilty. The record flatly contradicts this contention.

The plea agreement, to which Gunter points as evidence of his belief that he would be sentenced to sixty months, also states that sixty months is just an estimate and that he could receive up to forty years in prison. The court confirmed this fact on the record before taking Gunter’s guilty plea, and Gunter responded that he understood the situation. Nothing in the record suggests otherwise. III. For the reasons set forth above, we AFFIRM. . On appeal, Gunter also alleges a handful of instances of ineffective assistance of counsel.

Except in rare circumstances not present in this case, claims of ineffective assistance must be addressed in the first instance by a district court pursuant to a claim under 28 U.S.C. § 2255. United States v. Hall, 200 F.3d 962, 965 (6th Cir.2000). We therefore decline to address this aspect of Gunter's appeal.