James G. Carr V. Jj Case Summary

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 08a0264p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________ X Plaintiff-Appellant, No. 05-3708 > , Defendant-Appellee. N On Remand from the United States Supreme Court. No. 02-00708—James G. Carr, Chief District Judge. Argued: June 23, 2006 Decided and Filed: July 22, 2008 Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; BELL, Chief District Judge.* _________________ COUNSEL ARGUED: Joseph R. Wilson, ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for Appellant. Spiros P. Cocoves, LAW OFFICE, Toledo, Ohio, for Appellee ON BRIEF: Joseph R. Wilson, ASSISTANT UNITED STATES ATTORNEY, Toledo, Ohio, for Appellant. Spiros P. Cocoves,
This appears to be a mine-run case and not the unusual case outside the heartland. Certainly, Funk is not the unusually sympathetic and repentant figure depicted in Gall, 128 S. Ct. at 600-02, and the district court recognized as much. Funk, 477 F.3d at 424-25. And, unlike the 100-to-1 crack-to-cocaine ratio in Kimbrough, 128 S. Ct. at 575, the career offender guideline in this case (§ 4B1.1) is exactly the type of guideline issue that “exemplif[ies] the Commission’s exercise of its characteristic institutional role.” In fact, this provision is the direct result of Congress’s directive: Section 994(h) of Title 28 [] mandates that the Commission assure that certain ‘career’ offenders receive a sentence of imprisonment ‘at or near the maximum term authorized.’ Section 4B1.1 implements this directive, with the definition of a career offender tracking in large part the criteria set forth in 28 U.S.C. § 994(h). U.S.S.G. § 4B1.1 Commentary (Background). This alone is likely sufficient to distinguish the outcome of this case from that in Kimbrough. Furthermore, nothing in the district court’s explanation of its reasoning, as documented in its sentencing order, indicates that this case is atypical. In Rita, the Court acknowledged that, in every case, “both the sentencing judge and the Sentencing Commission
The definitions for § 4B1.1 are provided by § 4B1.2(b), which defines “controlled substance offense” as: [A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense. Here, Funk’s “instant offense of conviction” is for conspiracy to possess marijuana with intent to distribute it, in violation of 21 U.S.C. §§ 841(a) and 846, and is indisputably a controlled substance