United States v. Melvin Cromer, 436 F. App'x 490

Background

Cromer convicted by jury of conspiracy to possess with intent to distribute and to distribute methamphetamine, and of traveling in interstate commerce to distribute methamphetamine.
Stops in Georgia and Kentucky connected the Georgia arrest, discovery of 620.0 grams meth in Watkins’ glove box, and subsequent warrants/searches, including seizure of Cromer’s Duster not specifically authorized by a Kentucky warrant.
Georgia charges were dismissed due to a missing supervisor at a probable cause hearing; Cromer sought return of the Duster in Kentucky.
Cromer spoke with DEA agents in December 2006; agents cautioned he could leave, but he voluntarily answered questions about the Georgia arrest and Watkins’ activities.
Cooperation by Watkins and McFerron and their interviews supported the drug-trafficking case; Cromer was convicted and sentenced to 169 months (Count 1) and 60 months (Count 2), to run concurrently.
On appeal Cromer challenged jury instructions, indictment form, suppression rulings, sentencing adjustments, and overall reasonableness of the sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unanimity requirement on Count 1	Cromer: jury instruction failed to require unanimity on the specific means of conspiracy.	Cromer: instruction improperly allowed variance in underlying facts for the same element.	No error; unanimity as to the single conspiracy element suffices.
Duplicitous indictment	Cromer: Count 1 duplicitous by listing multiple objects of the conspiracy.	Cromer: separate means create multiple offenses in one count.	Not duplicitous; conspiracy to commit multiple objects is a single conspiracy.
Suppression of statements tainted by seizure	Cromer: statements were fruits of an unconstitutional seizure designed to lure him to the DEA office.	Cromer: statements were involuntary due to coercive police conduct.	Statements voluntary; taint dissipated; suppression not required.
Mitigating role adjustment under § 3B1.2	Cromer: should receive a mitigating role reduction given minimal/minor participation.	Cromer: role less culpable than others meriting the adjustment.	No entitlement to reduction; district court reasonably found Cromer not minimal/minor participant.
Substantive reasonableness of within-Guidelines sentence	Cromer: sentence too severe within Guidelines; unfair disparities with co-defendants.	Cromer: court failed to account for individual characteristics and responsibilities.	Sentence within the Guidelines; reasonable given the circumstances and co-defendant differences.

Key Cases Cited

Richardson v. United States, 526 U.S. 813 (U.S. 1999) (unanimity not required for all underlying brute facts in § 846 conspiracy)
United States v. Welch, 97 F.3d 142 (6th Cir. 1996) (elements of conspiracy require agreement, knowledge, participation)
United States v. Damrah, 412 F.3d 618 (6th Cir. 2005) (means vs. elements distinction in conspiracy)
United States v. Dale, 178 F.3d 429 (6th Cir. 1999) (conspiracy to possess with intent to distribute as single conspiracy)
United States v. Bartholomew, 310 F.3d 912 (6th Cir. 2002) (definition of minimal/minor participant for § 3B1.2)
Saucedo v. United States, 226 F.3d 782 (6th Cir. 2000) (denial of mitigating role adjustment for transport of drugs)
United States v. Carson, 560 F.3d 566 (6th Cir. 2009) (national disparities not tied to co-defendants; § 3553(a) factors)
United States v. Simmons, 501 F.3d 620 (6th Cir. 2007) (§ 3553(a) disparities focus on national level)
New York v. Harris, 495 U.S. 14 (U.S. 1990) (exclusion of tainted evidence when connected to illegal seizure)
Wong Sun v. United States, 371 U.S. 471 (U.S. 1963) (taint dissipation factors for derivative statements)
Brown v. Illinois, 422 U.S. 590 (U.S. 1975) (totality of the circumstances in voluntariness of confessions)
Richardson v. United States, 526 U.S. 813 (U.S. 1999) (unanimity and conspiracy elements)
United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (within-Guidelines sentence presumptively reasonable)
United States v. Ham, 628 F.3d 801 (6th Cir. 2011) (exercise of reviewing jury instructions; 'as a whole' analysis)