596 F. App'x 382
6th Cir.2015Background
- Whitelow pleaded guilty to conspiracy to possess cocaine with intent to distribute stemming from wiretapped communications with co-defendant Anthony Nixon and other transactions; he was one of 21 charged.
- PSR attributed 1.5284 kg of cocaine to Whitelow (base offense level 26) and recommended a two-level §3B1.1(c) role enhancement based largely on a confidential informant’s statement that Whitelow directed Aundra Smith to hold cocaine for him.
- Plea agreement stipulated to responsibility for 499 grams and a three-level reduction for acceptance of responsibility; the agreement was silent as to the §3B1.1(c) enhancement and included an appeal waiver limited to sentences exceeding the applicable Guidelines maximum.
- At sentencing Whitelow objected to paragraph 11 of the PSR (the informant’s allegation) as hearsay; the district court disclaimed reliance on that paragraph but adopted and relied on other unobjected-to PSR paragraphs (8 and 10) describing Whitelow’s procurement and resale activity and sales to an individual who traveled to buy from him.
- The district court applied the two-level §3B1.1(c) enhancement, producing a guidelines range of 46–57 months, and imposed a 48-month sentence; this appeal followed after the court of appeals allowed review despite the plea-waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the §3B1.1(c) two-level leadership/manager enhancement was supported by a preponderance of the evidence | Gov't: Uncontroverted PSR facts show Whitelow exercised control, engaged in procurement/resale, and sold to at least one subordinate customer, supporting enhancement | Whitelow: Government relied on uncorroborated hearsay (Nixon’s statement re: Smith) and PSR facts do not prove organizer/leader/manager role by a preponderance | Affirmed: District court permissibly relied on unobjected-to PSR paragraphs (8 and 10); those facts sufficed to apply §3B1.1(c) under deferential review |
| Whether the district court complied with Fed. R. Crim. P. 32(i)(3)(B) when Whitelow objected to a PSR paragraph | Whitelow: Court failed to perform required fact‑finding on disputed PSR matter | Government: Court expressly disclaimed reliance on disputed paragraph and relied only on undisputed portions of PSR | Affirmed: Court complied—ruled it would not consider paragraph 11 and relied on undisputed paragraphs; literal compliance satisfied |
| Standard of review for factual findings and Rule 32 compliance | — | — | Applied clear‑error review to factual findings, de novo to Rule 32 compliance but plain‑error on appeal because defendant did not raise Rule 32 at sentencing |
| Whether the appellate‑waiver barred review of the enhancement | Gov't: appeal waiver might bar | Whitelow: Enhancement not covered by waiver because plea silent as to it | Court previously held waiver ambiguous and allowed appeal; merits review proceeded |
Key Cases Cited
- United States v. Washington, 715 F.3d 975 (6th Cir. 2013) (deference to district court on role-in-offense conclusions)
- United States v. Baker, 559 F.3d 443 (6th Cir. 2009) (clear-error review of sentencing factfinding)
- United States v. Aleo, 681 F.3d 290 (6th Cir. 2012) (government must prove sentencing factors by preponderance)
- United States v. Vasquez, 560 F.3d 461 (6th Cir. 2009) (factors evidencing organizer/leader status)
- United States v. Carter, 355 F.3d 920 (6th Cir. 2004) (district court may accept undisputed PSR facts)
- United States v. Levy, 250 F.3d 1015 (6th Cir. 2001) (treatment of PSR allegations)
- United States v. Monus, 128 F.3d 376 (6th Cir. 1997) (literal compliance with Rule 32(i)(3)(B) required)
- United States v. McMeen, 49 F.3d 225 (6th Cir. 1995) (mere adoption of PSR insufficient when facts disputed)
- United States v. Solorio, 337 F.3d 580 (6th Cir. 2003) (court may not summarily adopt disputed PSR findings)
- United States v. White, 492 F.3d 380 (6th Cir. 2008) (de novo review of Rule 32 compliance)
- United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (plain-error review where Rule 32 objection not raised at sentencing)