NOT RECOMMENDED FOR PUBLICATION File Name: 24a0290n.06
No. 23-5674
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 03, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE VERNELL MOORE, ) Defendant-Appellant. ) OPINION )
Before: GRIFFIN, NALBANDIAN, and BLOOMEKATZ, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Vernell Moore pleaded guilty to conspiring to distribute methamphetamine, and
the district court sentenced him to 108 months’ imprisonment. He appeals his within-Guidelines
sentence, arguing that it is procedurally and substantively unreasonable. We disagree and affirm.
The relevant facts are straightforward. Moore was part of a conspiracy that shipped
methamphetamine from California to Tennessee. Law enforcement intercepted one of the
conspiracy’s packages containing methamphetamine, which Moore admitted he was supposed to
pick up and deliver to a co-conspirator. He then pleaded guilty to conspiring to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.
At sentencing, the district court found Moore responsible for three kilograms of actual
methamphetamine, resulting in a Guidelines range of 108 to 135 months’ imprisonment. No. 23-5674, United States v. Moore
After weighing the 18 U.S.C. § 3353 factors, the district court sentenced Moore to a bottom-of-
the-Guidelines term of 108 months’ imprisonment. Moore timely appealed.
We review sentences for reasonableness, using an abuse-of-discretion standard. United
States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008). “Reasonableness review has both substantive
and procedural components.” United States v. Keller, 498 F.3d 316, 322 (6th Cir. 2007). The
procedural component requires us to ensure that the district court: “(1) properly calculated the
applicable advisory Guidelines range; (2) considered the other [18 U.S.C.] § 3553(a) factors as
well as . . . arguments for a sentence outside the Guidelines range; and (3) adequately articulated
its reasoning for imposing the particular sentence chosen.” United States v. Bolds, 511 F.3d 568,
581 (6th Cir. 2007). In evaluating the procedural reasonableness of a defendant’s sentence, “we
review the district court’s factual findings for clear error and its legal conclusions de novo.” United
States v. Angel, 576 F.3d 318, 320 (6th Cir. 2009). And the substantive component requires us to
consider whether a defendant’s sentence “is too long” because the district court “placed too much
weight on some of the § 3553(a) factors and too little on others.” United States v. Rayyan, 885 F.3d
436, 442 (6th Cir. 2018). A within-Guidelines sentence is presumptively reasonable. United
States v. Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008) (en banc).
Moore’s procedural-reasonableness argument is simple: he contends that the district court,
as other courts have done, should not have followed the Guidelines’ 10:1 ratio that treats pure
methamphetamine ten times more severely than a methamphetamine mixture. See, e.g., United
States v. Johnson, 379 F. Supp. 3d 1213, 1226 (M.D. Ala. 2019) (rejecting the ratio on policy-
disagreement grounds). But a district court is not required to vary from the Guidelines based on a
policy disagreement with the 10:1 ratio. United States v. Allen, 93 F.4th 350, 359–60 (6th Cir.
2024). Indeed, “although a district court may take this policy disagreement into consideration, it is
-2- No. 23-5674, United States v. Moore
within the court’s discretion not to do so.” United States v. Kennedy, 65 F.4th 314, 326 (6th Cir.
2023); see also United States v. Mosley, 53 F.4th 947, 965 (6th Cir. 2022) (“[The defendant’s]
challenge to the 10:1 methamphetamine-mixture ratio amounts to little more than a policy
disagreement with the Guidelines, which the district court had discretion to reject.”). And “a
district court cannot be said to have abused its discretion merely because it followed” the
Guidelines. United States v. Lynde, 926 F.3d 275, 280 (6th Cir. 2019). Such is the case here.
The district court chose to follow the Guidelines’ 10:1 ratio after careful reflection. It
considered whether the ratio could be explained based on the view that actual methamphetamine
is closer to the source than less-pure mixtures, thereby making someone in possession of actual
methamphetamine more culpable than someone with a mixture (and thus further down the
distribution chain). Despite questioning that rationale, the district court decided to follow the
Guidelines because purer methamphetamine could be cut into many more doses than a less-pure
mixture, making it more dangerous to the community. The district court also found it notable that
the Sentencing Commission “has been aware of” the discrepancy at issue “for quite some time”
but “has not seen fit to make a change.”
This is not a situation in which the district court rotely imposed a within-Guidelines
sentence. Instead, the district court evaluated whether it should apply the Guidelines’ 10:1 ratio
and reasonably decided to do so. It therefore acted well within its discretion when rejecting
Moore’s policy challenge to the 10:1 ratio, making his sentence procedurally reasonable.
See Kennedy, 65 F.4th at 326.
Moore’s substantive-reasonableness challenge fares no better. The district court explicitly
weighed each of the § 3553(a) factors at sentencing. When doing so, it addressed the large amount
of methamphetamine at issue and the negative effects the drug could have on society. It also found
-3- No. 23-5674, United States v. Moore
relevant that Moore used a code word when trafficking drugs, which it believed suggested a higher
level of culpability than an average, low-level drug courier. The district court balanced these
aggravating factors against mitigating ones, including Moore’s limited criminal history, age
(45 years old), contribution to the community as a Mason, and health issues. Even so, the district
court concluded that a within-Guidelines sentence of 108 months was appropriate.
Moore’s attempt to rebut the presumption of reasonableness that we afford his within-
Guidelines sentence is unpersuasive. Vonner, 516 F.3d at 390. He argues that the district court
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NOT RECOMMENDED FOR PUBLICATION File Name: 24a0290n.06
No. 23-5674
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 03, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE VERNELL MOORE, ) Defendant-Appellant. ) OPINION )
Before: GRIFFIN, NALBANDIAN, and BLOOMEKATZ, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Vernell Moore pleaded guilty to conspiring to distribute methamphetamine, and
the district court sentenced him to 108 months’ imprisonment. He appeals his within-Guidelines
sentence, arguing that it is procedurally and substantively unreasonable. We disagree and affirm.
The relevant facts are straightforward. Moore was part of a conspiracy that shipped
methamphetamine from California to Tennessee. Law enforcement intercepted one of the
conspiracy’s packages containing methamphetamine, which Moore admitted he was supposed to
pick up and deliver to a co-conspirator. He then pleaded guilty to conspiring to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.
At sentencing, the district court found Moore responsible for three kilograms of actual
methamphetamine, resulting in a Guidelines range of 108 to 135 months’ imprisonment. No. 23-5674, United States v. Moore
After weighing the 18 U.S.C. § 3353 factors, the district court sentenced Moore to a bottom-of-
the-Guidelines term of 108 months’ imprisonment. Moore timely appealed.
We review sentences for reasonableness, using an abuse-of-discretion standard. United
States v. Jeross, 521 F.3d 562, 569 (6th Cir. 2008). “Reasonableness review has both substantive
and procedural components.” United States v. Keller, 498 F.3d 316, 322 (6th Cir. 2007). The
procedural component requires us to ensure that the district court: “(1) properly calculated the
applicable advisory Guidelines range; (2) considered the other [18 U.S.C.] § 3553(a) factors as
well as . . . arguments for a sentence outside the Guidelines range; and (3) adequately articulated
its reasoning for imposing the particular sentence chosen.” United States v. Bolds, 511 F.3d 568,
581 (6th Cir. 2007). In evaluating the procedural reasonableness of a defendant’s sentence, “we
review the district court’s factual findings for clear error and its legal conclusions de novo.” United
States v. Angel, 576 F.3d 318, 320 (6th Cir. 2009). And the substantive component requires us to
consider whether a defendant’s sentence “is too long” because the district court “placed too much
weight on some of the § 3553(a) factors and too little on others.” United States v. Rayyan, 885 F.3d
436, 442 (6th Cir. 2018). A within-Guidelines sentence is presumptively reasonable. United
States v. Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008) (en banc).
Moore’s procedural-reasonableness argument is simple: he contends that the district court,
as other courts have done, should not have followed the Guidelines’ 10:1 ratio that treats pure
methamphetamine ten times more severely than a methamphetamine mixture. See, e.g., United
States v. Johnson, 379 F. Supp. 3d 1213, 1226 (M.D. Ala. 2019) (rejecting the ratio on policy-
disagreement grounds). But a district court is not required to vary from the Guidelines based on a
policy disagreement with the 10:1 ratio. United States v. Allen, 93 F.4th 350, 359–60 (6th Cir.
2024). Indeed, “although a district court may take this policy disagreement into consideration, it is
-2- No. 23-5674, United States v. Moore
within the court’s discretion not to do so.” United States v. Kennedy, 65 F.4th 314, 326 (6th Cir.
2023); see also United States v. Mosley, 53 F.4th 947, 965 (6th Cir. 2022) (“[The defendant’s]
challenge to the 10:1 methamphetamine-mixture ratio amounts to little more than a policy
disagreement with the Guidelines, which the district court had discretion to reject.”). And “a
district court cannot be said to have abused its discretion merely because it followed” the
Guidelines. United States v. Lynde, 926 F.3d 275, 280 (6th Cir. 2019). Such is the case here.
The district court chose to follow the Guidelines’ 10:1 ratio after careful reflection. It
considered whether the ratio could be explained based on the view that actual methamphetamine
is closer to the source than less-pure mixtures, thereby making someone in possession of actual
methamphetamine more culpable than someone with a mixture (and thus further down the
distribution chain). Despite questioning that rationale, the district court decided to follow the
Guidelines because purer methamphetamine could be cut into many more doses than a less-pure
mixture, making it more dangerous to the community. The district court also found it notable that
the Sentencing Commission “has been aware of” the discrepancy at issue “for quite some time”
but “has not seen fit to make a change.”
This is not a situation in which the district court rotely imposed a within-Guidelines
sentence. Instead, the district court evaluated whether it should apply the Guidelines’ 10:1 ratio
and reasonably decided to do so. It therefore acted well within its discretion when rejecting
Moore’s policy challenge to the 10:1 ratio, making his sentence procedurally reasonable.
See Kennedy, 65 F.4th at 326.
Moore’s substantive-reasonableness challenge fares no better. The district court explicitly
weighed each of the § 3553(a) factors at sentencing. When doing so, it addressed the large amount
of methamphetamine at issue and the negative effects the drug could have on society. It also found
-3- No. 23-5674, United States v. Moore
relevant that Moore used a code word when trafficking drugs, which it believed suggested a higher
level of culpability than an average, low-level drug courier. The district court balanced these
aggravating factors against mitigating ones, including Moore’s limited criminal history, age
(45 years old), contribution to the community as a Mason, and health issues. Even so, the district
court concluded that a within-Guidelines sentence of 108 months was appropriate.
Moore’s attempt to rebut the presumption of reasonableness that we afford his within-
Guidelines sentence is unpersuasive. Vonner, 516 F.3d at 390. He argues that the district court
improperly asked the prosecutor at sentencing about how many doses could come from the three
kilograms of methamphetamine for which Moore was responsible. Yet he did not object to that
question at sentencing and even now does not contest the accuracy of the prosecutor’s answer or
point to any legal authority suggesting that this question was improper. In any event, the
prosecutor opined that the methamphetamine Moore was responsible for could be cut into 6,000
to 15,000 doses. Based on our caselaw, that was a very conservative estimate: “[a]n average
‘dose’ of methamphetamine weighs between one-tenth and one-quarter of a gram,” which would
result in between 12,000 and 30,000 doses here. United States v. Potter, 927 F.3d 446, 448
(6th Cir. 2019). Regardless of which estimate is used, the record shows this was a serious offense
given the large amount of methamphetamine at issue.
Moore also contends that the district court should have given more attention to his health
issues. To be sure, the district court spent little time at sentencing on Moore’s health, noting that
Moore’s health issues were similar to or less severe than many other defendants brought before
the court. But it nevertheless acknowledged that Moore “has legitimate health issues” such that it
“accommodated” him “by allowing him to be seated” during sentencing. The district court also
allowed Moore to wait nearly four months after sentencing to report to prison so he could receive
-4- No. 23-5674, United States v. Moore
additional medical care. So it understood that Moore had health issues but still concluded that
those issues did not outweigh his serious crime to warrant a below-Guidelines sentence. That was
not an abuse of discretion.
For these reasons, we affirm Moore’s sentence.
-5-