NOT RECOMMENDED FOR PUBLICATION File Name: 23a0252n.06
Case No. 22-5517 FILED UNITED STATES COURT OF APPEALS Jun 05, 2023 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN MICHAEL DISHMAN, ) DISTRICT OF KENTUCKY Defendant-Appellant. ) ) OPINION
Before: MOORE, McKEAGUE, and MATHIS, Circuit Judges.
McKEAGUE, Circuit Judge. Michael Dishman pled guilty to one count of possession
with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). He was sentenced to 240 months’ imprisonment. On appeal, Dishman challenges his
below-Guidelines sentence as procedurally and substantively unreasonable. For the reasons set
forth below, we affirm.
I
On August 11, 2021, a confidential source informed the Wayne County Sheriff’s Office
that Dishman had been selling large quantities of methamphetamine. Specifically, the confidential
source advised the officers that she had visited Dishman’s home on the previous day to purchase
two ounces of methamphetamine for $600 per ounce. The Sheriff’s Office executed a search
warrant at Dishman’s residence, which resulted in the seizure of more than 100 grams of
methamphetamine. No. 22-5517, United States v. Dishman
On September 22, 2021, Dishman was indicted in the Eastern District of Kentucky for
possession with intent to distribute 50 grams or more of a methamphetamine mixture, in violation
of 21 U.S.C. § 841(a)(1). On January 31, 2022, he pled guilty. Due to his prior felony drug
convictions, Dishman was classified as a career offender. Dishman’s Pre-Sentence Report (“PSR”)
calculated his Guidelines sentencing range as 262 to 327 months of imprisonment based on a total
offense level of 34 and a criminal-history category of VI. After considering the sentencing factors
under 18 U.S.C. § 3553(a), the district court varied downward slightly and sentenced Dishman to
240 months’ imprisonment.
Dishman did not object to the length of his sentence at sentencing. He did, however, file a
timely appeal arguing that his sentence is both procedurally and substantively unreasonable.
II
A. Procedural Reasonableness
A sentence is procedurally unreasonable “if the district court fails to calculate (or
improperly calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider
the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately
explain the chosen sentence—including an explanation for any deviation from the Guidelines
range.” United States v. Gates, 48 F.4th 463, 473 (6th Cir. 2022) (internal alterations, citations,
and quotations omitted).
Dishman contends that his sentence is procedurally unreasonable for two reasons. First,
he argues that “it is unclear from the record whether the district court believed it was restricted
from applying a more significant downward variance based on Mr. Dishman’s status as a career
offender.” Appellant Br. at 7. And second, he claims that the district court failed to address his
life-expectancy argument. Because Dishman failed to raise these procedural objections below, we
-2- No. 22-5517, United States v. Dishman
review his claims for plain error. See United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir.
2004). Under plain-error review, Dishman must show an “(1) error (2) that ‘was obvious or clear,’
(3) that ‘affected [his] substantial rights[,]’ and (4) that ‘affected the fairness, integrity, or public
reputation of the judicial proceedings.’” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.
2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
We begin with Dishman’s first contention—that the district court believed it lacked
discretion to apply a more significant downward variance given Dishman’s status as a career
offender—and find that the district court did not plainly err. Contrary to Dishman’s suggestion,
the district court clearly recognized that the Guidelines were advisory. Not only did the court
impose a sentence below the Guidelines range, but the sentencing judge repeatedly acknowledged
his discretion to deviate from that range irrespective of Dishman’s status as a career offender. For
example, the sentencing judge stated, “ultimately, I am not bound by the sentencing guidelines.
They are only advisory. They are a recommendation to the Court.” R. 42, PID 216. And later, he
further clarified, “I can go away from the guidelines. I can go above the range or below the range
or sentence within it, based on my consideration of the particulars in the case[.]” Id. Nothing in
the record supports Dishman’s contention that the court doubted its own authority to apply a more
significant downward variance. To the contrary, the record shows that the sentencing court was
aware of and understood its discretion to depart from the Guidelines.
Dishman’s second procedural challenge—that the district court ignored his life-expectancy
argument—is equally unavailing. At sentencing, Dishman argued, “This is my life. You give me
262 months, average person only lives 76 years, male. I won’t live very long afterwards if I don’t
die while I’m in there.” R. 42, PID 242. But contrary to Dishman’s contention on appeal, the
district court clearly understood that Dishman faced a lengthy sentence. When discussing the
-3- No. 22-5517, United States v. Dishman
potential penalties associated with Dishman’s conviction, the sentencing judge noted, “So you
could receive life in prison for this time. Now, I’m not going to do that, but that’s the territory you
are in with this kind of criminal conduct and this record.” Id. at 245.
Regardless, Dishman’s dissatisfaction with the extent to which the district court considered
his life-expectancy argument is unpersuasive. The court was “not required to respond to every
argument raised by the defendant.” United States v. Judge, 649 F.3d 453, 457 (6th Cir. 2011).
Rather, the sentencing judge merely needed to “set forth enough [explanation] to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” United States v. Jeross, 521 F.3d 562, 583
(6th Cir. 2008) (alteration in original) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
And here, the district court satisfied this requirement. The court properly calculated the Guidelines
range, clearly recognized that the range was advisory, considered the § 3553(a) factors without
considering any impermissible factors, made proper factual findings, gave due consideration to
Dishman’s arguments, and adequately explained its chosen sentence.
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0252n.06
Case No. 22-5517 FILED UNITED STATES COURT OF APPEALS Jun 05, 2023 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN MICHAEL DISHMAN, ) DISTRICT OF KENTUCKY Defendant-Appellant. ) ) OPINION
Before: MOORE, McKEAGUE, and MATHIS, Circuit Judges.
McKEAGUE, Circuit Judge. Michael Dishman pled guilty to one count of possession
with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). He was sentenced to 240 months’ imprisonment. On appeal, Dishman challenges his
below-Guidelines sentence as procedurally and substantively unreasonable. For the reasons set
forth below, we affirm.
I
On August 11, 2021, a confidential source informed the Wayne County Sheriff’s Office
that Dishman had been selling large quantities of methamphetamine. Specifically, the confidential
source advised the officers that she had visited Dishman’s home on the previous day to purchase
two ounces of methamphetamine for $600 per ounce. The Sheriff’s Office executed a search
warrant at Dishman’s residence, which resulted in the seizure of more than 100 grams of
methamphetamine. No. 22-5517, United States v. Dishman
On September 22, 2021, Dishman was indicted in the Eastern District of Kentucky for
possession with intent to distribute 50 grams or more of a methamphetamine mixture, in violation
of 21 U.S.C. § 841(a)(1). On January 31, 2022, he pled guilty. Due to his prior felony drug
convictions, Dishman was classified as a career offender. Dishman’s Pre-Sentence Report (“PSR”)
calculated his Guidelines sentencing range as 262 to 327 months of imprisonment based on a total
offense level of 34 and a criminal-history category of VI. After considering the sentencing factors
under 18 U.S.C. § 3553(a), the district court varied downward slightly and sentenced Dishman to
240 months’ imprisonment.
Dishman did not object to the length of his sentence at sentencing. He did, however, file a
timely appeal arguing that his sentence is both procedurally and substantively unreasonable.
II
A. Procedural Reasonableness
A sentence is procedurally unreasonable “if the district court fails to calculate (or
improperly calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider
the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails to adequately
explain the chosen sentence—including an explanation for any deviation from the Guidelines
range.” United States v. Gates, 48 F.4th 463, 473 (6th Cir. 2022) (internal alterations, citations,
and quotations omitted).
Dishman contends that his sentence is procedurally unreasonable for two reasons. First,
he argues that “it is unclear from the record whether the district court believed it was restricted
from applying a more significant downward variance based on Mr. Dishman’s status as a career
offender.” Appellant Br. at 7. And second, he claims that the district court failed to address his
life-expectancy argument. Because Dishman failed to raise these procedural objections below, we
-2- No. 22-5517, United States v. Dishman
review his claims for plain error. See United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir.
2004). Under plain-error review, Dishman must show an “(1) error (2) that ‘was obvious or clear,’
(3) that ‘affected [his] substantial rights[,]’ and (4) that ‘affected the fairness, integrity, or public
reputation of the judicial proceedings.’” United States v. Vonner, 516 F.3d 382, 386 (6th Cir.
2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
We begin with Dishman’s first contention—that the district court believed it lacked
discretion to apply a more significant downward variance given Dishman’s status as a career
offender—and find that the district court did not plainly err. Contrary to Dishman’s suggestion,
the district court clearly recognized that the Guidelines were advisory. Not only did the court
impose a sentence below the Guidelines range, but the sentencing judge repeatedly acknowledged
his discretion to deviate from that range irrespective of Dishman’s status as a career offender. For
example, the sentencing judge stated, “ultimately, I am not bound by the sentencing guidelines.
They are only advisory. They are a recommendation to the Court.” R. 42, PID 216. And later, he
further clarified, “I can go away from the guidelines. I can go above the range or below the range
or sentence within it, based on my consideration of the particulars in the case[.]” Id. Nothing in
the record supports Dishman’s contention that the court doubted its own authority to apply a more
significant downward variance. To the contrary, the record shows that the sentencing court was
aware of and understood its discretion to depart from the Guidelines.
Dishman’s second procedural challenge—that the district court ignored his life-expectancy
argument—is equally unavailing. At sentencing, Dishman argued, “This is my life. You give me
262 months, average person only lives 76 years, male. I won’t live very long afterwards if I don’t
die while I’m in there.” R. 42, PID 242. But contrary to Dishman’s contention on appeal, the
district court clearly understood that Dishman faced a lengthy sentence. When discussing the
-3- No. 22-5517, United States v. Dishman
potential penalties associated with Dishman’s conviction, the sentencing judge noted, “So you
could receive life in prison for this time. Now, I’m not going to do that, but that’s the territory you
are in with this kind of criminal conduct and this record.” Id. at 245.
Regardless, Dishman’s dissatisfaction with the extent to which the district court considered
his life-expectancy argument is unpersuasive. The court was “not required to respond to every
argument raised by the defendant.” United States v. Judge, 649 F.3d 453, 457 (6th Cir. 2011).
Rather, the sentencing judge merely needed to “set forth enough [explanation] to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.” United States v. Jeross, 521 F.3d 562, 583
(6th Cir. 2008) (alteration in original) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
And here, the district court satisfied this requirement. The court properly calculated the Guidelines
range, clearly recognized that the range was advisory, considered the § 3553(a) factors without
considering any impermissible factors, made proper factual findings, gave due consideration to
Dishman’s arguments, and adequately explained its chosen sentence. See Gates, 48 F.4th at 473.
Accordingly, we find that the district court did not plainly err and that Dishman’s sentence is
procedurally reasonable.
B. Substantive Reasonableness
We now consider whether Dishman’s below-Guidelines sentence is substantively
reasonable. “A sentence may be considered substantively unreasonable when the district court
selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United
States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). In essence, a challenge to the substantive
reasonableness of a sentence is “a complaint that the court placed too much weight on some of the
-4- No. 22-5517, United States v. Dishman
§ 3553(a) factors and too little on others in sentencing the individual.” United States v. Rayyan,
885 F.3d 436, 442 (6th Cir. 2018). However, “[t]he district court’s decision to assign more or less
weight to a given factor is ‘a matter of reasoned discretion, not math, and our highly deferential
review of a district court’s sentencing decisions reflects as much.’” United States v. Boucher, 937
F.3d 702, 707 (6th Cir. 2019) (quoting Rayyan, 885 F.3d at 442). “The fact that [we] might
reasonably have concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall v. United States, 552 U.S. 38, 51 (2007). Furthermore, “[w]hen,
as here, a defendant argues that his below-Guidelines sentence is substantively unreasonable, a
presumption of reasonableness applies and the ‘task of persuading us that the more lenient sentence
[ ] is unreasonably long is even more demanding.’” United States v. Hills, 27 F.4th 1155, 1200
(6th Cir. 2022) (alteration in original) (quoting United States v. Curry, 536 F.3d 571, 573 (6th Cir.
2008)).
Unlike challenges for procedural unreasonableness, challenges for substantive
unreasonableness need not be preserved for appeal. United States v. Freeman, 640 F.3d 180, 185–
86 (6th Cir. 2011). We therefore review the substantive reasonableness of Dishman’s sentence for
an abuse of discretion. Gall, 552 U.S. at 51. To find an abuse of discretion, we must be “left with
a definite and firm conviction that the district court committed a clear error of judgment.” United
States v. Perez-Rodriguez, 960 F.3d 748, 753 (6th Cir. 2020) (quoting Coach, Inc. v. Goodfellow,
717 F.3d 498, 505 (6th Cir. 2013)).
Dishman argues that his sentence is substantively unreasonable because the district court
failed to reference § 3553(a)’s “parsimony” idea and “gave an unreasonable amount of weight to
the non-binding guidelines range at the expense of other mitigating factors.” Appellant Br. at 16.
For the following reasons, Dishman’s arguments are without merit.
-5- No. 22-5517, United States v. Dishman
First, the district court repeatedly addressed § 3553(a)’s requirement that a sentence be
“sufficient, but no greater than necessary.” For example, the sentencing judge noted that it was
his “responsibility and job . . . to impose a sentence that is sufficient, but no greater than necessary,
to accomplish the purposes set forth in [§ 3553(a)].” R. 42, PID 220. Later, the sentencing judge
repeated that he was required to impose a sentence that was “enough but no more than enough.”
Id. at PID 253. The court even expressly considered whether the Guidelines range for career
offenders “fit[s] with the parsimony idea, that the sentence should be no more than enough to
accomplish the purposes[,]” before concluding that “a sentence of 240 months is sufficient, but no
greater than necessary.” Id. at 254–55. The record plainly contradicts Dishman’s allegation that
the district court failed to consider § 3553(a)’s parsimony requirement.
We are similarly unpersuaded by Dishman’s assertion that the sentencing court gave undue
weight to his status as a career offender at the expense of other mitigating factors. Instead, we find
that the court appropriately weighed each relevant sentencing factor. As to the seriousness of
Dishman’s offense, the court noted that Dishman had been convicted of a Class A felony with a
statutory minimum sentence of ten years’ imprisonment and the potential for a life sentence.
Regarding Dishman’s respect for the law, the court noted:
[B]y and large, your entire adult life -- you have lived in a way that shows disrespect for the law, and that is a commitment of living within the law. You just haven’t had it. And to the contrary, you have had a regular and repeated tendency to make choices outside the law, far outside the law, and I have got to . . . address it within the judgment.
R. 42, PID 246. The court then acknowledged that in order to impose just punishment there must
be “a sharp consequence for” Dishman’s “criminal thinking and criminal decision-making.” Id.
at 246–47.
-6- No. 22-5517, United States v. Dishman
The court also addressed deterrence, stating that Dishman’s sentence “ought to make
people think twice about going down this path.” Id. at 247. As for protecting the public, the court
noted that Dishman “pose[d] a significant risk to society,” and that the only certain way to protect
the public from that risk was imprisonment. Id. at 247–48. The district court also sought to provide
any available and necessary treatment or educational opportunities to Dishman during his
incarceration. And finally, the court considered the sentences available under the Guidelines,
relevant policy statements, and the need to avoid unwarranted sentencing disparities.
Although Dishman’s status as a career offender was undoubtedly a significant
consideration at sentencing, the court appropriately balanced Dishman’s past encounters with the
criminal justice system against various mitigating considerations, such as his acceptance of
responsibility and his long-term struggle with drug addiction. See United States v. Dunnican, 961
F.3d 859, 881 (6th Cir. 2020). For example, the court acknowledged that Dishman was “a 28-year
daily meth user,” and that methamphetamine addiction “is a powerful voice,” but it weighed this
struggle with addiction against Dishman’s otherwise “pretty dark and dismal record.” R. 42, PID
252–53. Ultimately, the court concluded that each sentencing factor weighed in favor of a lengthy
sentence, and that 240 months’ imprisonment—a slight downward variance from the Guidelines
range—was sufficient but no greater than necessary to accomplish the sentencing aims of
§ 3553(a).
On appeal, Dishman essentially asks that we reweigh the sentencing factors, but we have
no license to do so. See United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (“Because
[Dishman’s] argument ultimately boils down to an assertion that the district court should have
balanced the § 3553(a) factors differently, it is simply beyond the scope of our appellate
-7- No. 22-5517, United States v. Dishman
review[.]”). Because the district court’s analysis evinces no abuse of discretion, we conclude that
Dishman’s below-Guidelines sentence is substantively reasonable.
III
For the foregoing reasons, we affirm the district court’s sentence.
-8-