United States v. Ivory, No. 13-5962 (6th Cir. Mar. 21, 2014) (unpublished), is a fairly unremarkable per curiam opinion (Judges Boggs, Siler, and Gibbons).
But I'm noting it here b/c the defendant relied on the Holder memo to argue for a lower sentence. The COA rejected the argument.
Crack case. Defendant was a career offender. GLs 151 to 188. D asked for a 60-month sentence (over-represented criminal history, just a street-level dealer). Dist ct granted downward variance and sentenced D to 130 months of imprisonment.
COA says that "[g]iven that we afford a within-guidelines sentence a rebuttable presumption of substantive reasonableness, [the defendant's] burden of demonstrating that his below-guidelines sentence 'is unreasonably long is even more demanding.'"
COA stressed that the Holder memo on charging mand mins and recidivist enhancements is just a policy statement. Confers no rights. Plus, D was not subject to a mand min, was already convicted at the time, and not subject to a "recidivist enhancement" (statutory one, as he was a career offender). Also said that he was not a candidate for the policy b/c of his lengthy criminal history.