*1 Before: McKEAGUE, NALBANDIAN, and MURPHY, Circuit Judges.
_________________
COUNSEL ARGUED: Mary Chartier, CHARTIER & NYAMFUKUDZA, P.L.C., Okemos, Michigan, for Appellant in 20-1265. Daniel T. McGraw, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Mary Chartier, CHARTIER & NYAMFUKUDZA, P.L.C., Okemos, Michigan, for Appellant in 20-1265. Michael J. Manning, MANNINGLAW, Escanaba, Michigan, for Appellant in 20-1118. Lawrence J. Phelan, Walker, Michigan, for Appellant in 20-1170. John M. Karafa, GRAVIS LAW, PLLC, Muskegon, Michigan, for Appellant in 20-1260. Daniel R. Fagan, DANIEL R. FAGAN & ASSOCIATES, P.C., Grand Rapids, Michigan, for Appellant in 20-1266. Mark Louis Dobias, MARK L. DOBIAS, P.C., Sault Ste. Marie, Michigan, for Appellant in 20-1272. Daniel T. McGraw, Kate Zell, Kathryn Dalzell, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________ NALBANDIAN, Circuit Judge. This case is about a drug-trafficking conspiracy that distributed more than 100 kilograms of powder and crack cocaine in Southwest Michigan from 2017 to 2018. The conspiracy involved dozens of actors across the states of Michigan, Texas, and Arkansas. But only eight members of the operation play a relevant role here. The first, Howard Mayfield, served as the Grand Rapids-based ringleader of the drug-trafficking organization. The second, Wilbert Gentry, supplied Mayfield from Houston, Texas, with kilogram quantities of cocaine. The next six players—Donald Gardner, Martinellus Nix, Ryan Brown, Douglas Emmanuel Carey, Marvin Nix, and Salena Kolarich—acted as money couriers, wholesale distributors, and street-level dealers in the Grand Rapids area.
Federal prosecutors indicted a grand total of 27 coconspirators in 2018. And all were convicted for their various roles in the conspiracy. These appeals are brought by six of those coconspirators—Gardner, Brown, Carey, Kolarich, Marvin Nix, and Martinellus Nix. Together, their consolidated appeals present 17 issues, ranging from the denial of their motions to suppress wiretap evidence to sentencing errors. We take each in turn, affirming the district court on all but one issue.
I.
The Investigation. Howard Mayfield ran a drug-trafficking organization out of Grand Rapids, Michigan. His operation dealt powder and crack cocaine in and around the area. Wilbert Gentry, an old cellmate of Mayfield’s, supplied the organization with cocaine from his base in Houston, Texas. Starting in the spring of 2017, Mayfield received around five kilograms of cocaine from Gentry each month. Sometimes the amount varied—once Mayfield received 15 kilograms from Gentry. Sometimes Gentry supplied Mayfield more than once a month. And sometimes Mayfield met Gentry in Houston to exchange cocaine and payment, although other times he met one of Gentry’s couriers in Arkansas. All in all, Mayfield’s operation managed to move hundreds of kilograms of cocaine in 2017 and 2018.
But Mayfield’s drug-trafficking ring wasn’t the only clandestine operation in town. Agents at the Drug Enforcement Agency (DEA) caught wind of Mayfield’s organization right before Gentry entered the picture. They launched an investigation soon after, partnering with law enforcement agencies across the country to slowly piece together a picture of the operation. Together, the agencies used many traditional techniques—including confidential sources, controlled buys, phone record analysis, and physical surveillance—to gather information. And they had some success. Investigators, for instance, learned the identities of people associated with Mayfield, gathered physical evidence that Mayfield dealt cocaine, and knew the identity of Gentry.
But after a year of work, the investigation stalled. Confidential sources dried up. Physical surveillance couldn’t follow suspects into apartment buildings. And toll record and pen register requests struggled to keep pace with rotating burner phones. So despite some initial success, investigators still missed key pieces of the puzzle. True, they had identified a few suspects close to Mayfield. But they didn’t know the scope of the suspects’ roles or if they even worked for the operation in the first place. In short, investigators had enough evidence to prosecute Mayfield and Gentry, but not enough to dismantle the whole organization.
So on March 13, 2018, investigators sought authorization to wiretap one of Mayfield’s phones (Target Phone 1). In support, they filed an 87-page affidavit that described how Mayfield used the phone, why interception was necessary, and what techniques had been “tried and [had] failed to fully achieve the goals and objectives of [the] investigation.” (R. 2, pp. 79– 99.) The district court signed an order authorizing interception for an initial 30-day period that same day. About a month later, the district court signed an order for another 30-day wiretap on the same phone. But soon after, investigators realized Mayfield had started to use a new phone (Target Phone 2) to communicate with his cocaine suppliers and distributors. So they put in an application to tap that phone too, which the district court approved on May 1, 2018.
The wiretaps served their purpose. Investigators paired intercepted communications with continued physical and electronic surveillance. Together, the evidence painted a detailed picture of Mayfield’s organization. This picture revealed the scope of each coconspirators’ role. Brown and Gardner served as retail distributors of cocaine for Mayfield. Both communicated with Mayfield about shipments, suppliers, and deals. Carey and the Nix cousins, for their parts, filled out the roster as street-level dealers. And Kolarich, Gentry’s girlfriend, collected $50,000 in cash cocaine proceeds from Mayfield in a parking-lot exchange. She personally transported some of the money to Gentry and asked friends to help her wire the rest.
Armed with the wiretap evidence, investigators launched a coordinated takedown on May 24, 2018. That day, they arrested and charged 15 members of Mayfield’s operation—including Mayfield, Gardner, Gentry, and Brown. Soon after, the grand jury indicted 27 defendants, including Martinellus Nix, Marvin Nix, Carey, and Kolarich, with conspiracy to distribute and possess cocaine, along with substantive counts for each of the defendants’ drug-related activities.
All but four of the 27 defendants pleaded guilty. Gardner took this path, pleading guilty to conspiring to distribute and possess with the intent to distribute cocaine or cocaine base. Martinellus Nix did the same, pleading guilty to possession with intent to distribute cocaine. The other four defendants—Brown, Carey, Marvin Nix, and Salena Kolarich—proceeded to trial.
Trial and Sentencing Proceedings . At trial, the government introduced testimony from many witnesses. Investigators testified about their participation in the takedown of the drug- trafficking ring. Expert witnesses explained the code words and street slang used in intercepted calls and texts. Voice-identification witnesses identified the defendants’ voices on intercepted calls. And cooperating codefendants, like Gentry, gave in-depth descriptions of the organization’s operations. The government’s evidence also included drugs bought from Mayfield, intercepted cocaine, bank records, phone records, residency records, and electronic evidence from GPS tracking devices. The real star of the show, though, was the wiretap evidence. The government played intercepted phone calls between Mayfield and each of the defendants. It also introduced pages of text messages that discussed drug dealing, cocaine shipments, and cocaine-supply issues.
In the end, the jury convicted all four defendants. Each was convicted on the cocaine conspiracy charge. The jury also convicted Brown, Carey, and Marvin Nix of separate counts of possession with intent to distribute cocaine or cocaine base. And it convicted Kolarich for unlawful use of a communication facility to enable the cocaine conspiracy, along with interstate travel to distribute the conspiracy’s drug proceeds.
The district court then sentenced Gardner to 168 months, Martinellus Nix to 120 months, Marvin Nix to 96 months, Carey to 150 months, Brown to 204 months, and Kolarich to 60 months’ imprisonment.
All six defendants appealed, raising 17 issues in total. We address their arguments in three parts. First, we consider the district court’s denial of the defendants’ motion to suppress the wiretap evidence. Next, we turn to evidence issues from the trial. Last, we take up the defendants’ sentencing challenges.
II.
The standard of review for a district court’s denial of a motion to suppress is familiar. We review findings of fact for clear error and questions of law de novo. United States v. Young 847 F.3d 328, 342 (6th Cir. 2017). But in cases about motions to suppress wiretap evidence, there’s a twist. This is because we consider the orders of two different district court judges: (1) the issuing district court judge, who authorizes the government’s use of wiretaps in the first place; and (2) the reviewing district court judge, who either grants or denies a defendant’s motion to suppress the wiretap evidence.
The distinction between the issuing and the reviewing district court judge is key to this appeal. All the defendants, except Kolarich, challenge the district court’s denial of the motion to suppress evidence from the three wiretap applications. But they do so for two distinct reasons. First, each defendant makes the same substantive challenge: They believe the government failed to meet the Title III necessity requirement for wiretaps. This argument attacks the issuing district court’s determination that the government satisfied that requirement. Second, only one of the defendants, Martinellus Nix, makes a procedural challenge. He argues the reviewing district court abused its discretion when it considered only two of the three wiretap applications.
We review the substantive challenge with fresh eyes and ask if the issuing district court
abused its discretion when it authorized the wiretaps.
United States v. Wright
,
Substantive Challenge.
Before the government can wiretap a suspect’s phone, it must
satisfy Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–
2520. Title III imposes a heightened warrant requirement for government wiretaps. Not only
must the government show probable cause,
see
18 U.S.C. § 2518(3), but it also must satisfy the
“statutory ‘necessity requirement.’”
United States v. Stewart
,
Typically, we affirm an issuing judge’s necessity finding when a wiretap application
meets three criteria. First, the government can’t use a wiretap as “the initial step.”
United States
v. Landmesser
, 553 F.2d 17, 20 (6th Cir. 1977) (quoting
United States v. Giordano
, 416 U.S.
505, 515 (1974)). Second, investigators shouldn’t resort to wiretapping in circumstances “where
traditional investigative techniques would suffice to expose the crime.”
Id.
at 19–20 (quoting
United States v. Kahn
,
1. Initial Step.
Investigators didn’t use wiretaps as an initial, or even an intermediate,
step. Instead, they spent more than a year diligently using traditional techniques. Still, after a
full year of working with confidential sources, executing controlled buys, using pen registers and
toll records, installing GPS tracking devices, engaging in physical surveillance, and watching
pole camera footage, the government lacked key pieces of the drug-trafficking puzzle. To be
sure, these techniques established the existence of Mayfield’s organization, identified Gentry as a
cocaine supplier, and found new target subjects. But investigators wanted to discover enough
evidence to dismantle the entire organization and “fully prosecute all members,” not just arrest a
few participants. In a litany of cases, this Court has affirmed the use of wiretaps in similar
circumstances.
[1]
This is because “nothing requires the government to call off its investigation
after it achieves only some of its goals.”
United States v. Castro
,
A few defendants disagree. In his brief, Carey argues “[t]here was a rush to get access to phones instead of pursuing the investigation through more conventional means . . . .” (Carey Br. at 3.) Gardner makes a similar argument. The record doesn’t support their position. Investigators didn’t rush or jump to wiretapping. Instead, they applied for wiretaps after a year of using traditional tools.
Two defendants, Brown and Marvin Nix, make a more nuanced argument. They contend
that the wiretaps counted as an initial step against them. In their view, Title III requires the
government to use traditional investigative techniques against each suspect before resorting to
wiretapping. But Brown and Marvin Nix aren’t the first defendants to make these kinds of
arguments. In
United States v. Jenkins
, the defendants similarly claimed “investigators were
required to pursue traditional methods of investigation into the activities of all named
interceptees in each wiretap application.”
The same holds true here. In this case, investigators exhausted traditional investigative tools without gathering enough evidence to dismantle the organization. And it applied for a wiretap to “identify[] other key personnel.” (R. 2, p. 196.) That it did so successfully does not mean it impermissibly used wiretaps as an initial step against newly identified members.
2. Use of Traditional Techniques.
Title III’s necessity requirement ensures that
investigators don’t resort to wiretapping in circumstances “where traditional investigative
techniques would suffice to expose the crime.”
Landmesser
, 553 F.2d at 19–20 (citation
omitted). To satisfy the requirement, though, investigators “need not prove the impossibility of
other means of obtaining information.”
Stewart
,
That’s exactly what the government did here. In each of the three wiretap applications,
investigators’ supporting affidavits described why traditional “investigative procedures have
been tried and failed,” appeared “unlikely to succeed,” or seemed “too dangerous.”
See
18 U.S.C. § 2518(1)(c). The level of detail showed officers didn’t resort to wiretapping where
traditional techniques would have sufficed. Each affidavit listed the traditional techniques
investigators had tried before and explained why those techniques wouldn’t reveal the scope of
the entire drug-trafficking conspiracy. Each incorporated new information into its investigative
history. And each described why investigators still needed wiretap evidence. All in all, the three
affidavits showed the government “g[ave] serious consideration to the non-wiretap techniques.”
Alfano
,
The defendants make several counterpoints, none convincing. Three argue that the
government’s initial success with traditional techniques and “fail[ure] to pursue additional viable
[methods]” “obviated the
need
for wiretaps.” (Gardner Br. at 39, 41;
see also
Brown Br. at 19;
Marvin Nix Br. at 13.) Gardner, for example, focuses on warrants. He contends that the
government should have used search warrants “before seeking further wiretaps like the tap of
Phone 2.” (
Id
. at 32.) But this argument ignores the reality that search warrants would have
exposed the covert operation. True, the government used residential search warrants “just three
weeks after” it received authorization to tap Target Phone 2. (
Id.
) But it executed those warrants
at the end of the investigation. Besides, this Court has never held the government must try
traditional techniques that would “alert other members of the conspiracy of the investigation.”
Gonzalez
,
For his part, Martinellus Nix attacks the third wiretap application. He argues that the government presented insufficient new information to “justify” that last tap into Target Phone 2. ( See Martinellus Nix Br. at 22–23.) Gardner makes an adjacent argument. He asserts that the second and third wiretap applications didn’t “differ remarkably” from the first. (Gardner Br. at 27.)
Two points in response. First, the defendants ignore the reams of fresh evidence the government presented in the second two applications. Second, when an investigation merits multiple wiretaps, a later application often will resemble an earlier one. After all, “the surveillance techniques” found inadequate during one part of the investigation will often be futile for “similar reasons” later. United States v. Sims , 508 F. App’x 452, 459 (6th Cir. 2012); see also Corrado , 227 F.3d at 539 (rejecting the defendants’ assertion that further electronic surveillance was unwarranted because the government had gathered a “large quantum of evidence” and had other “available investigative techniques” at its disposal).
3. Case-Specific Support.
Last, we consider the use of case-specific support.
Investigators may rely on “prior experience” to explain why traditional techniques appear
unlikely to succeed or seem too dangerous.
Landmesser
,
Here, the three affidavits pass the test. Although each affidavit contains a few general conclusions, specific examples provide support along the way. For instance, the first affidavit makes general assertations about the limitations of physical surveillance. But it doesn’t leave it at that. Instead, it follows with specific examples of why those limitations proved true in the investigation of Mayfield’s organization. This pattern repeats itself in each affidavit and for every traditional technique.
The defendants disagree. They argue the wiretap affidavits relied on generalized, boilerplate conclusions that apply to “all drug-trafficking-organization investigations.” (Gardner Br. at 29–30.) And in their view, these “boilerplate” recitations render the wiretap applications inadequate. (Carey Br. at 46–47; see also Brown Br. at 9; Marvin Nix Br. at 13.)
But each boilerplate argument suffers from one of three analytical flaws. First, the defendants fail to contend with the case-specific support included in each wiretap affidavit. Second, they overstate the Title III requirement. Third, they rely on inapposite precedent.
Start with the failure to contend with case-specific support. Defendants point to an example of a generalized conclusion, cry “boilerplate,” and rest their case. But their analysis ignores the detailed, case-specific information that follows most references to the investigator’s experience. Take Gardner’s brief. He asserts that the government’s discussion of physical surveillance, confidential sources, and trash pulls rest on the same “boilerplate conclusions.” (Gardner Br. at 29, 30, 35–36, 40.) But for each technique, the affidavits tell a different story. In fact, each affidavit provides pages of analysis explaining why, in this specific case, physical surveillance, confidential sources, and trash pulls didn’t work or proved too risky.
Next, defendant’s overstate Title III’s requirement. For instance, Gardner recognizes the government made some “assertions specific to the investigation.” (Gardner Br. at 36.) Still, he believes the fact that “one [could] make similar assertions in most multi-defendant drug cases” negates necessity even in the presence of case-specific support. ( Id. ) But Title III doesn’t require investigators to show why one drug investigation is unique or distinguishable from all others. Rather, it tells the government to prove why, in that specific case, certain traditional techniques have “been tried or failed” or appeared “unlikely to succeed.” See 18 U.S.C. § 2518(1)(c); see also United States v. Wren , 528 F. App’x 500, 504–05 (6th Cir. 2013) (explaining that the affidavit, when read as a whole, supported a necessity finding even though it included some language that could apply to most narcotics investigation). And in all three applications, the government did just that.
One last note. Defendants compare this case to
United State v. Rice
, one of our
precedents, and
United States v. Blackmon
, a Ninth Circuit case. Neither is on point. In
Rice
the district court determined that the affidavit contained “misleading” and “reckless” statements.
478 F.3d at 707–09. It found that without the misleading statements, only “uncorroborated
thoughts and opinions” remained.
Id.
at 709. This meant the affidavit provided “no evidence that
any other investigative technique was . . . seriously considered.”
Id.
So it suppressed the
evidence. We agreed with its analysis and affirmed.
Id.
at 710. In
Blackmon
, the Ninth Circuit
made a similar move.
This case is not like Rice or Blackmon . Defendants don’t allege that the affidavits contain misleading or false statements. Nor do they identify material omissions. What’s more, investigators identified multiple case-specific “examples of actual investigative techniques that had already been used” and would serve “limited value going forward.” See Sims , 508 F. App’x at 457 (distinguishing Rice ).
* * *
In sum, each wiretap application met Title III’s necessity standard. The investigators didn’t use the wiretaps as an initial step. They provided detailed explanations as to why traditional investigative techniques failed to expose the entire scope of the drug-trafficking enterprise. And they gave fresh, case-specific examples in each application. For these reasons, we affirm the issuing district court judge’s finding of necessity for all three wiretaps and the reviewing district court judge’s denial of the motion to suppress.
Procedural Challenge. Only one of the defendants, Martinellus Nix, makes a procedural challenge. He claims that the reviewing district court erred when it considered the first two wiretap applications in its denial order, but not the third. Failure to explicitly consider the third application, Nix asserts, qualifies as an abuse of discretion. And given the lack of evidence “implicating him on the first two wiretaps,” Nix believes this omission “prejudiced” him and mandates reversal. (Martinellus Nix Br. at 13.) Nix is right about one thing. Although the district court’s order explains why the first and second wiretap applications satisfied the necessity requirement, the third application goes unmentioned.
Still, we need not reach his procedural challenge. We review the issuing judge’s
necessity finding for each wiretap application with fresh eyes.
Wright
,
Our answer for the third application? No. The third application, like the first two,
satisfied Title III’s necessity requirement. So even if the reviewing district court erred in
omitting the last application, we decline to remand the issue just so it might receive another look.
Put another way, our answer to the substantive question in this case—whether the third wiretap
application satisfied the necessity requirement—precludes our need to consider the procedural
one.
Accord United States v. Rodriguez
,
III.
Carey, Brown, Marvin Nix, and Kolarich make various challenges to the evidence presented at trial. Some attack the admission of expert testimony. Others dispute the sufficiency of the evidence to give jury instructions or convict. We address the issues one by one.
Agent Burns’s Daubert Hearing.
Carey claims that the district court erred when it denied
his
Daubert
hearing motion for one of the government's expert witnesses, DEA Agent Thomas
Burns. We review a district court’s decision to admit or exclude expert testimony for abuse of
discretion.
In re Scrap Metal Antitrust Litigation
,
Carey’s argument ignores a crucial fact: The government didn’t call Burns as a witness at
trial. And Carey never explains how, without testimony from Agent Burns, the district court’s
ruling affected his substantial rights. Instead, he focuses on the merits of the district court’s
Daubert
call. This omission dooms his claim. Even if we agreed with Carey on the merits, any
error would be harmless because Agent Burns never testified.
See
Fed. R. Evid. 103(a);
White
,
Agent Labno’s Expert Testimony.
Carey, Brown, and Marvin Nix challenge the expert
testimony of ATF Agent Christopher Labno. At trial, Agent Labno deciphered code words and
street slang used in the defendants’ intercepted calls and texts. The defendants objected on two
grounds to the admission of Agent Labno’s testimony: (1) his qualifications and (2) his
testimony’s relevance. Because they raised these arguments at trial, we review their challenges
for abuse of discretion.
United States v. Dunnican
,
We consider the qualifications first. Agent Labno served as a special agent on the ATF’s drug-trafficking task force more than 18 years, participating in at least 150 investigations. This work involved purchasing various narcotics, including powder and crack cocaine, in undercover operations across the United States. Given his extensive experience, Agent Labno was more than qualified to testify about drug-trafficking-street slang.
This conclusion tracks with our caselaw. We have routinely found “law enforcement
officers” qualify as “expert witnesses” when they “interpret intercepted conversations that use
slang, street language, and the jargon of the illegal drug trade.”
United States v. Kilpatrick
We take up the relevance of his testimony next. Under Federal Rule of Evidence 702,
expert testimony must help “the trier of fact to understand the evidence or determine a fact in
issue.” This helpfulness standard “goes primarily to relevance.”
Daubert v. Merrell Dow
Pharms., Inc.
,
The defendants push back. Agent Labno, they protest, never worked in the Grand Rapids area and misinterpreted words. They also point out that Agent Labno admitted that some slang depends on context. As they see it, that admission showed “there was nothing that Agent Labno could offer the jury.” (Carey Br. at 31.) We disagree. Defendants’ objections go to the weight of Agent Labno’s testimony, not its admissibility. And their own questioning of Agent Labno at trial proves this point. There, Agent Labno conceded he never worked in Grand Rapids or on the investigation, that slang varied across regions, and that he spoke with colleagues about Grand Rapids slang before the trial. The jurors heard these concessions and considered them. So we decline to step into their shoes and reweigh the accuracy of Agent Labno’s testimony now. We affirm the district court’s admission of Agent Labno’s expert testimony.
One final point. The defendants suggest the district court should have held a Daubert hearing for Agent Labno. But no defendant requested such a hearing. In fact, at the pretrial motion hearing about Agent Burns’s testimony, one defense counsel favorably cited the government’s witness disclosure statement for Agent Labno. “[T]he information that we received on Agent Labno,” he explained, “is exactly the information that we were seeking on Agent Burns.” (R. 1256, PageID 13699.) With no request for a Daubert hearing in the record, the defendants cannot claim error now.
Lay Witness Voice Identification. Carey also argues that the district court erred when it allowed four lay witnesses to identify his voice on intercepted calls. Three of the witnesses— Wilbert Gentry, Officer Thomas Mize, and Sergeant Gregory Alcala—had spoken with Carey in person. Mize served as Carey’s probation officer, often visiting Carey at his home and speaking to him on the phone. Sergeant Alcala visited Carey’s residence not long before the trial, talking to Carey both outside his home and on the phone. And Gentry, Carey’s codefendant, spoke with Carey many times in jail. The fourth witness, Detective Danny Wills, had spent hundreds of hours listening to the intercepted calls in real-time, learning Carey’s voice as he monitored discussions.
Carey presents two general concerns—one preserved and one forfeited—about the voice-
identification witnesses. First, the preserved argument. Carey contends that voice identifications
require an expert witness. We review this claim for abuse of discretion.
United States v. Pryor
The standard of admissibility for an “opinion identifying a person’s voice” is a low one.
Fed. R. Evid. 901(b)(5). If the identifying witness has “heard the voice of the alleged speaker at
any
time,” his testimony is admissible.
United States v. Cooke
, 795 F.2d 527, 530 (6th Cir.
1986) (emphasis added) (quotation omitted);
see also United States v. Hogan
,
Each of the government’s voice-identification witnesses passes the admissibility bar.
Contrary to Carey’s assertion, voice identification does not require an expert.
Id.
And here, each
witness had heard Carey’s voice—either in person, on the phone, or on a recording—more than
once. This made them familiar enough with his voice to provide a lay opinion. Any remaining
objections about the witnesses’ “minimal contact[s],” motives for testifying, and “exposure to
[Carey’s] voice, go[] to the weight, not the admissibility of the evidence.”
United States v.
Branch
,
Constructive Possession Instruction.
Carey and Brown challenge the district court’s
constructive possession instruction. We review this claim for abuse of discretion, reversing the
district court’s choice “only if the instruction[], viewed as a whole, [was] confusing, misleading,
or prejudicial.”
United States v. Taylor
, 800 F.3d 701, 709 (6th Cir. 2015) (quoting
United
States v. Svoboda
,
At trial, Carey and Brown each faced charges of possession with intent to distribute cocaine. The district court instructed the jury that, to find the defendants guilty of those charges, it must find they exercised actual or constructive possession over the cocaine. Constructive possession, it elaborated, exists when a person has a “right to exercise physical control over the cocaine” and intent to “exercise” that control—either directly or through other persons. (R. 12252, PageID 13530 . ) Brown and Carey don’t challenge the legal accuracy of this instruction. Instead, they contend it “was not rationally supported by the evidence.” (Brown Br. at 27.)
We begin with Carey’s claim. He says the government presented “insufficient evidence” that he had the “right to exercise physical control” over any cocaine. (Carey Br. at 49.) Because “absolutely no drugs” were found in his presence, he argues the constructive possession instruction “would confuse a reasonable juror.” ( Id. at 50.) Not so. The government produced intercepted phone calls and texts between Carey and Mayfield that discussed cocaine drop-offs, quality, and price. Physical surveillance accompanied these communications. It showed that Mayfield made short trips to Carey’s home right after they discussed a cocaine delivery. So for both of Carey’s possession counts, the evidence showed that Carey had the right and intent to exercise control over cocaine. Brown’s claim fails for similar reasons. During the trial, the government presented evidence—in the form of physical surveillance, intercepted calls, and first-hand witness testimony—that tied Brown to cocaine possession and distribution for each of his possession counts.
In sum, for both Carey and Brown’s possession charges, the government supplied more than enough evidence to justify the district court’s constructive-possession instruction.
Rule 29 Motions. Brown and Kolarich appeal the district court’s denial of their motions for acquittal. Both argue the government presented insufficient evidence at trial to support their various convictions.
We review challenges to the sufficiency of the evidence with fresh eyes
. See Taylor
, 800
F.3d at 711. De novo inquiry, though, doesn’t mean we “weigh the evidence, assess the
credibility of witnesses, or substitute our judgment for that of the jury.”
United States v. Rosales
We start with Brown’s challenge. The jury convicted Brown on three counts: conspiring to distribute and possess with intent to distribute 500 grams or more of cocaine (Count 1); possessing with intent to distribute cocaine on April 8, 2018 (Count 5); and possessing with intent to distribute 500 grams or more of cocaine on May 7, 2018 (Count 12). Focusing on Counts 5 and 12, Brown contends that “[n]o transaction was observed or substantiated in the evidence in support of these counts.” (Brown Br. at 27.)
The gist of Brown’s complaint is that no investigator observed Brown cooking cocaine or distributing the product to his customers. And he’s right about that. Still, the government produced plenty of direct evidence—in the form of intercepted calls, physical surveillance, and coconspirator testimony—that Brown worked closely with Mayfield as a wholesale distributor of cocaine. Consider the conspiracy count. The jury heard testimony, listened to recorded conversations, and read many texts showing Brown stayed in regular contact with Mayfield about his sourcing trips, the operation’s cocaine supply, and the cooking of crack cocaine. A rational trier of fact could find Brown possessed intimate knowledge of the Mayfield organization’s workings and participated in many aspects of the trafficking. His conviction for conspiracy stands.
Next, the possession count for April 8, 2018. This time, intercepted communications showed that Brown asked Mayfield to bring him half an ounce of cocaine. Physical surveillance confirmed Mayfield fulfilled the order quickly, driving to Brown’s home just 30 minutes later. Even though the government didn’t see the cocaine in Brown’s hands, it presented enough circumstantial evidence to justify the jury’s conviction.
Last, the possession count for May 7, 2018. In spring 2018, Mayfield and Gentry’s sourcing relationship hit hard times. As supplies dried up, Brown recruited a new cocaine supplier for Mayfield, named Craig James, and coordinated meetings between the two men. At trial, James testified that Brown accompanied Mayfield on multiple trips to pick up cocaine. On the May 7 trip, James noted that Brown and Mayfield secured a whole kilogram of cocaine. Again, it’s true that the government didn’t directly observe the May 7 transaction. Still, it presented evidence that would allow a reasonable juror to infer that Brown possessed 500 grams or more of cocaine with intent to distribute that day.
Like Brown, Kolarich challenges the sufficiency of the evidence for all three of her convictions. Remember that Mayfield handed off $50,000 in drug-trafficking proceeds to Kolarich, which she delivered to Gentry. Enlisting the help of two friends, Kolarich wired $15,900 of the cash directly to Gentry. She flew the rest of the money—around $34,100—down to Houston herself in a carry-on bag.
This courier role resulted in three charges: conspiring to distribute and possess with intent to distribute 500 grams or more of cocaine (Count 1); knowingly and intentionally using a communication facility to facilitate the cocaine conspiracy (Count 9); and interstate travel to distribute cash drug proceeds from the conspiracy (Count 10). The jury convicted her on all three counts. Now, Kolarich disputes the knowledge element of each charge, arguing “she was not aware of the cocaine conspiracy.” (Kolarich Br. at 33.) The government, she alleges, didn’t produce “direct evidence” establishing her “precise knowledge” of the “existence and main purpose of the Mayfield conspiracy.” ( Id. at 30.)
At the outset, we note that the government need not present direct, or “smoking gun
evidence,” of a defendant’s guilt.
Rosales
,
In this case, the district court instructed the jury on both knowledge and deliberate ignorance. Take the conspiracy count. The district court told the jury it could find Kolarich guilty if it believed she “knew the conspiracy’s main purpose” or “deliberately ignored a high probability the money was proceeds from the drug conspiracy.” (R. 1252, PageID 13526, 13537.) At trial, the jury heard ample evidence of Kolarich’s presence during key conspiracy events—evidence that would allow it to convict her under either theory of intent.
For instance, Kolarich knew Gentry had served time in federal prison for a previous cocaine conviction and that he met Mayfield there. She was present when Mayfield drove down to Houston to pick up five kilograms of cocaine from Gentry. And just five days after Mayfield’s Houston trip, Kolarich traveled to Michigan to collect part of the money he owed Gentry for the drugs. Not long after, when Gentry flew up to Grand Rapids to try to gather the rest of money, Kolarich drove to meet him. Together, they spent two days trying to track Mayfield and the missing proceeds down. Later, when Kolarich comforted a shaken Gentry after he learned of Mayfield’s arrest, she didn’t express surprise or shock at the news.
Admittedly, the government never presented direct evidence of Kolarich’s knowledge of the cocaine conspiracy. For example, Gentry—her boyfriend—never conceded that he told Kolarich the $50,000 came from drug trafficking. Even so, the abundance of circumstantial evidence presented at trial would allow a reasonable juror to infer Kolarich knew, or deliberately ignored the fact, she acted as a participant in a cocaine conspiracy. Under either theory of intent, we conclude that the government met its evidentiary burden for the conspiracy charge.
Kolarich’s arguments about the next two charges—Count 9 and Count 10—fall with the first. Indeed, Kolarich admits as much, acknowledging that “the same reasoning applies” to those counts as to the “conspiracy count.” (Kolarich Br. at 33.) This admission makes sense. To convict Kolarich of the latter charges, the jury needed to find Kolarich knowingly used a telephone to “facilitate . . . the conspiracy” and traveled “knowingly . . . [to] distribute the proceeds” of the conspiracy. (R. 1252, PageID 13533–35.) The same evidence that would allow a reasonable jury to infer that Kolarich knew, or deliberately ignored the fact, that she acted as a participant in a cocaine conspiracy, also would permit it to make the identical inference as to the communication and travel counts.
In sum, the government presented sufficient evidence of Brown’s and Kolarich’s role in the drug-trafficking ring to support each defendant’s three counts of conviction. We affirm the district court’s denial of Brown’s and Kolarich’s Rule 29 motion.
III.
Each defendant, except Martinellus Nix, challenges some aspect of his or her sentence. We take up each of their arguments in turn.
Drug-Quantity Calculation.
Brown and Carey challenge the drug quantities the district
court used to calculate their sentences. We uphold a district court’s drug-quantity determination
unless it is “clearly erroneous.”
United States v. Jeross
,
A preponderance of the evidence supported the drug quantities used to calculate each defendant’s sentence. Begin with Brown. The district court held him responsible for five to 15 kilograms of cocaine. Brown’s objection to this quantity mirrors his challenge to the sufficiency of the evidence. The government, he says, had no physical evidence tying him to more than five kilograms of cocaine. No officer saw him with drugs. And no search recovered contraband from his residence. But once again, Brown’s argument ignores the extensive wiretap evidence, officer surveillance, and codefendant testimony that tied him to far more than five kilograms of cocaine.
Go back to Brown’s recruitment of James as a cocaine supplier. Brown coordinated three cocaine deals with James for the Mayfield organization. So he is directly responsible for the 2.5 kilograms he received in those meetings. After a time, Brown’s sister took over his coordination role. She secured another 4.5 kilograms and delivered the product to Mayfield. Mayfield then passed on some of this cocaine to Brown for distribution. Brown also knew about Mayfield’s April 4 trip to Houston. While there, Mayfield obtained five kilograms of cocaine for the organization. Brown texted his sister and Mayfield about the trip, noting he “couldn’t wait” for Mayfield’s return. (R. 1246, PageID 12377.) The cocaine Brown’s sister and Mayfield hustled for the operation also add to Brown’s total.
At day’s end, the drug quantities attributed to Brown were “reasonably foreseeable” and
“within the scope of the criminal activity that [Brown] jointly undertook.”
Young
, 847 F.3d at
367 (quotation omitted). Brown set up Mayfield’s relationship with James. Then, he continued
to receive cocaine from James’s supply even after his sister took over pickup. He likewise knew
Mayfield traveled to Houston to restock the organization’s cocaine source and expected to
benefit from the fresh supply. Given this evidence, “we are hard-pressed to see how the drug
quantities involved were not ‘reasonably foreseeable’ to [Brown].”
Tisdale
,
Carey makes a similar argument, meriting a similar rejection. At sentencing, the district court attributed five kilograms of cocaine to Carey. These five kilograms also came from Mayfield’s April 4 trip to Houston. In intercepted phone conversations, Carey repeatedly encouraged Mayfield to go to Houston. He wanted Mayfield to refresh the operation’s cocaine supply so lower-level distributors like him could resume drug dealing. The district court listened to these calls at trial and found Carey responsible for the five kilograms from the Texas trip.
Carey contends that five kilograms is too much because he never uttered those exact
words in his conversations with Mayfield. But a drug-quantity determination doesn’t require
explicit statements from a defendant. Instead, a district court need make only a “reasonable
estimate” based on the record.
Tisdale
,
The district court’s calculation complied with this standard. Carey’s calls with Mayfield touched on earlier cocaine deliveries from Houston. Those restocks included up to eight kilograms of cocaine. The district court referenced this conversation to calculate Carey’s drug quantity. It reasonably inferred that Carey knew Mayfield would return from Houston with several kilograms of cocaine and urged him to make the trip for that reason. This finding is not clearly erroneous. After all, under a preponderance-of-the-evidence standard, the district court only need find it more likely than not that Carey had a hand in the five kilograms of cocaine. Because it did that here, we affirm.
Drug-Premises Enhancement. Brown challenges another aspect of his sentence: the drug-premises enhancement. If a defendant maintains a premise to manufacture or distribute a controlled substance, the Guidelines add two levels to his sentencing range. See U.S.S.G. § 2D1.1(b)(12). Because Brown used his home to deal drugs, the district court applied the enhancement. Brown says the district court got it wrong. He insists the government presented no evidence that he distributed drugs from his home. He also argues he didn’t “maintain” his home for purpose of drug distribution. ( Id. at 34-36.)
The district court made the right call. Drug distribution need not be the “sole purpose for
which the premises [is] maintained” for the enhancement to apply.
Id.
§ 2D1.1 cmt. n.17.
Instead, a defendant qualifies if distribution is “
one of
[his] primary and principal uses for the
premises.”
Id.
(emphasis added). Put another way, distribution must be a “significant or
important reason for which [the defendant] maintain[s] his home.”
United States v. Johnson
Contrary to Brown’s claims, the drug dealing activities in his home were neither collateral nor incidental. Phone calls, text messages, and surveillance evidence showed that he used his home to receive, weigh, distribute, and cook cocaine. Here’s a highlight reel. Mayfield once dropped off half-ounce amounts of cocaine at Brown’s home. Soon after, someone else arrived, went in the back door, and left a minute later. Brown also invited others over to cook crack cocaine. Brown even encouraged his sister to weigh out cocaine on his scales. And he texted her about cocaine deals taking place in and about his residence.
The district court put these events together. It found drug dealing was one of Brown’s primary and principal uses for his home and applied the enhancement. Given Brown’s extensive drug receiving, drug weighing, drug distributing, and drug-cooking activities, the district court did not clearly err in doing so.
Safety-Valve Relief.
Kolarich challenges the district court’s decision to deny her motion
for safety-valve relief. Because a district court makes a factual finding when it grants or denies
such a motion, we review for clear error.
United States v. Barron
,
A defendant may receive a sentence below the statutory mandatory minimum if she
qualifies for relief under 18 U.S.C. § 3553(f). Designed only to benefit the defendants “who
truly cooperate,” the provision provides a “safety valve” for those who can satisfy its five
criteria.
United States v. O’Dell
, 247 F.3d 655, 675 (6th Cir. 2011) (quotation omitted);
18 U.S.C. § 3553(f). The defendant must show she satisfies each requirement by a
preponderance of the evidence.
United States v. Bolka
,
Here, the parties agree Kolarich meets four of the five criteria. But they dispute the fifth—whether Kolarich “truthfully provided the Government all information and evidence [she had] concerning the offense or offenses that were part of the same course of conduct” before the sentencing hearing. 18 U.S.C. § 3553(f)(5). This “tell all” criterion “requires a defendant to admit the conduct charged.” O’Dell , 247 F.3d at 675. But that’s not all. It also imposes an affirmative obligation to “volunteer any information aside from the conduct comprising the elements of the offense.” Id. (quoting United States v. Arrington , 73 F.3d 144, 149 (7th Cir. 1996)); see also U.S.S.G. § 5C1.2 cmt. n.3 (noting the fifth requirement includes information about “the offense of conviction and all relevant conduct”).
At the sentencing hearing, Kolarich contended that she did just this. She said she gave the government “all information and evidence that she had concerning the conspiracy.” (R. 1197, PageID 11225.) Besides, she urged, “there [was] no evidence that [she] knew . . . that the money” she received “was cocaine proceeds.” ( Id. at 11227.) The government disagreed. It argued she had not fully disclosed “her involvement in the offenses” because she refused to fully “admit the conduct charged.” (R. 1187, PageID 11144.); O’Dell , 247 F.3d at 675. That is, Kolarich stood firm to her assertion that she did not know and should not have known the $50,000 came from cocaine dealing.
The district court sided with the government. It found Kolarich didn’t “fully admit her involvement in the case.” (R. 1255, PageID 13668–69.) The court compared the jury’s conviction of Kolarich, which required a finding of actual knowledge or deliberate ignorance, with Kolarich’s assertion that she didn’t know the $50,000 came from drug trafficking. In the court’s view, Kolarich’s complete denial of conspiracy knowledge and her decision to proceed to trial showed that she didn’t truly cooperate. Kolarich contests this finding on appeal, reiterating her argument that the “record strongly suggests” she did not know and should not have known “she was a participant in the conspiracy.” [2] (Kolarich Br. at 37.)
We disagree. To qualify for safety-valve relief, Kolarich needed to admit, at a minimum,
“the conduct comprising the elements of the offense.”
O’Dell
, 247 F.3d at 675 (citation
omitted). This she did not do. Recall that the government charged Kolarich with three offenses.
Each offense included a knowledge element that required a showing of actual knowledge or
deliberate ignorance. So to satisfy the tell-all criteria, Kolarich needed to “provide[]” “all
information and evidence” about her knowledge of the conspiracy. 18 U.S.C. § 3553(f)(5). But
Kolarich never made any admissions consistent with actual knowledge or deliberate ignorance.
Instead, she asserted her innocence as to any knowledge of the cocaine conspiracy throughout
the pretrial, trial, and sentencing proceedings. What’s more, Kolarich made this choice despite
the government’s evidence that she knew about or deliberately ignored her role in the drug-
trafficking conspiracy. The jury heard that evidence and found it sufficient to establish
Kolarich’s mental culpability. So it returned a guilty verdict on all three offenses. The district
court reviewed the same facts, considered the jury’s verdict, and reached a similar conclusion:
Kolarich’s insistence on her innocence contradicted the evidence. This meant she didn’t
“truthfully provide” “all information” about “the conduct charged.” 18 U.S.C. § 3553(f)(5). At
day’s end, “the district court simply did not believe that [Kolarich] [told] the subjective truth as
[she] knew it.”
United States v. Aguilera
,
Given the extensive circumstantial evidence presented at trial, we cannot say the district
court clearly erred in doing so. Besides, when faced with the government’s challenge to her
safety-valve claim, Kolarich never pointed to any disclosure or statement consistent with actual
knowledge or deliberate ignorance. Instead, she insisted that there was no evidence she knew
about the conspiracy. So at bottom, Kolarich failed to satisfy her burden of proof.
See Barron
940 F.3d at 917–18 (“Where the government challenges a defendant’s claim of complete and
timely disclosure and the defendant does not produce evidence that demonstrates such
disclosure, a district court’s denial of [safety-valve relief] is not clearly erroneous.” (citations and
quotations omitted)). Because the safety-valve provision “requires a defendant to admit the
conduct charged,”
O’Dell
,
Career-Offender Enhancement.
Marvin Nix challenges the district court’s application of
the career-offender enhancement to his sentence. Because Nix raised this argument below, we
review his claim de novo.
United States v. Havis
,
To qualify as a career offender, a defendant must have at least two prior felony convictions for either a crime of violence or a controlled-substance offense. See U.S.S.G. § 4B1.1. Nix had one of each. He was convicted under Michigan state law for (1) delivery or manufacture of a controlled substance and (2) armed robbery. Nix argues the former conviction—for delivery or manufacture of a controlled substance—is not a controlled substance offense. If he’s right, the district court misapplied the enhancement. His single armed-robbery conviction would fall one conviction short of the career-offender threshold.
But Nix is wrong. The Guidelines define a controlled-substance offense as “an offense
under federal or state law . . . that prohibits the manufacture import, export, distribution, or
dispensing of a controlled substance . . . or the possession of a controlled substance . . . with
intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). We use a
“categorical approach” to determine whether a federal or state statute fits within this definition.
United States v. Booker
, 994 F.3d 591, 595 (6th Cir. 2021) (quotation omitted). If the “outer
edges of the state law—often the ‘least culpable conduct’ that the law proscribes”—fall outside
of § 4B1.2’s definition, “then the conviction doesn’t count.”
United States v. Garth
, 965 F.3d
493, 495 (6th Cir. 2020);
see also United States v. Thomas
,
Our decision in
Havis
illustrates the categorical approach at work. In that case, we held
that “attempt crimes do not qualify as controlled substance offenses.”
Havis
,
Contrary to Nix’s assertions, his conviction under the Michigan delivery statute falls
within, not outside the Guidelines. That statute defines delivery as “the actual, constructive, or
attempted transfer” of a controlled substance. Mich. Comp. Laws § 333.7105(1). Under federal
law, distribution means delivery, and it’s described in identical terms: “the actual, constructive,
or attempted transfer of a controlled substance.” 21 U.S.C. § 802(8), (11);
see Garth
, 956 F.3d at
496. Because “there is no meaningful difference between the federal offense of distribution and
the Michigan offense of delivery,” Nix’s Michigan conviction qualifies as a controlled-
substance offense.
Thomas
,
Nix counters with
Havis
’s exemption of attempt crimes. Michigan’s delivery statute
covers the “attempted transfer” of a controlled substance.
See
Mich. Comp. Laws § 333.7105(1).
So Nix contends
Havis
applies, and his conviction isn’t a controlled-substance offense. Binding
precedent forecloses this argument. In
United States v. Garth
, we clarified that “delivery means
attempted
transfer
, not an attempted
delivery
.” 965 F.3d at 497. And in
Thomas
, we applied
Garth
to hold that Michigan’s delivery statute fell squarely within the Guidelines’ definition of a
controlled-substance offense.
Because Nix had two prior felony convictions—one for a crime of violence and one for a controlled-substance offense—we affirm the district court’s application of the career-offender enhancement.
Substantive and Procedural Reasonableness.
Gardner and Brown attack the
reasonableness of their sentences. A district court’s sentencing decision must be procedurally
and substantively reasonable.
United States v. McCarty
,
A district court’s sentencing decision should explain how and why it arrives at a
sentence.
See Gall v. United States
,
Typically, we assess procedural reasonableness for abuse of discretion.
See Gall
As to substance, the “touchstone” of our review is “whether the length of the sentence is
reasonable in light of the § 3553(a) factors.”
United States v. Tate
,
1. Brown’s Sentence.
Brown contends his sentence is neither procedurally nor
substantively reasonable. We consider procedure first. Brown says the district court erred when
it refused to grant his motion for a downward variance. Because he failed to raise this defect
below, we review for plain error.
United States v. Bostic
,
No error occurred. The district court properly calculated the advisory Guideline range of 168 to 210 months. This range reflected an offense level of 32 and a criminal history category of IV. It then applied the § 3553(a) factors. Brown’s extensive criminal history, his failure to comply with court orders and conditions, and his significant role in the drug conspiracy underscored the district court’s decision. Emphasizing the need for deterrence—given Brown’s criminal past and the “amount of drugs” he helped push in “the streets of Grand Rapids”—the court imposed a sentence of 204 months. (R. 1254, PageID 13653.)
Along the way, the district court also “listened to each argument” Brown raised.
See
Vonner
,
But our analysis doesn’t end there. Brown also claims his sentence is substantively unreasonable. We disagree. The district court focused on the § 3553(a) factors and highlighted the ones it found most important. Those were “the history and characteristics of the defendant, the nature [and] seriousness of the offense, [promoting] respect for the drug laws of the United States, [] provid[ing] just punishment, and protect[ing] the public from further crimes of the defendant.” (R. 1254, PageID 13654). The district court based its sentence on those factors, did not place undue weight on any one of them, and did not consider illegitimate factors. So the sentence was substantively reasonable.
Brown responds that the district court’s decision still shows “statutory imbalance.”
(Brown Br. at 39.) In his view, the district court failed to credit certain sentencing factors (like
Brown’s physical disabilities and relationships with his children) and over-emphasized other
factors (like the need to punish and deter). This disparity, Brown says, means his sentence “is
greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).”
United
States v. Tristan-Madrigal
, 601 F.3d 629, 632–33 (6th Cir. 2010) (internal quotation omitted).
It’s true the district court attached great weight to certain factors. But “[n]ot all” § 3553(a)
factors “are important in every sentencing.”
United States v. Bridgewater
,
Because the district court’s sentencing decision was procedurally and substantively reasonable, we affirm.
2. Gardner’s Sentence.
Gardner challenges only the substantive reasonableness of his
sentence. At 168 months, his sentence reflects an upward variance of 17 months. This above-
Guidelines sentence has both an “upside” and a “downside” for Gardner.
United States v.
Thomas
,
The district court’s 17-month variance was not an abuse of discretion. It acknowledged
the Guidelines served as “an initial benchmark,” listed the § 3553(a) factors, and assured
Gardner it considered his arguments “for a lower sentence.” (R. 1219, PageID 11431.) Then, it
took care to explain why it found the initial benchmark insufficient in Gardner’s case. Gardner
had a storied history of drug-related criminal activity. This history included convictions for the
use of marijuana, the use of cocaine, possession with intent to distribute marijuana, possession
with intent to distribute 50 grams or more of cocaine, and the delivery or manufacture of cocaine.
The latest chapter began when Gardner, fresh out of prison and still on supervised release, joined
Mayfield’s drug-trafficking operation. (
Id.
) In the “short period of time” between his release
from prison in early 2018 and the operation’s takedown that May, Gardner managed to have a
hand in more than “17 kilograms of cocaine.” (R. 1219, PageID 11433
.
) Given his “inability” to
“conform his conduct” to the law, the district court found the Guidelines range inadequate to
deter Gardner, protect the public, and provide just punishment. (
Id.
at 11434). So it varied
upward two-levels to impose a 168-month sentence. Because “the court supported its variance
with rational reasons rooted in the § 3553(a) factors,” its sentence was substantively reasonable.
Thomas
,
Gardner counters that the district court disregarded “the sentences received by equally (or more) culpable codefendants,” his “deplorable childhood,” his “challenging personal background,” and his “limited participation in th[e] offense.” (Gardner Br. at 53.) But the district court’s decision refutes each of his concerns. Far from ignoring Gardner’s background, the district court “recognize[d] the extreme difficulty of his childhood” and “considered it.” (R. 1219, PageID 11439.) As for Gardner’s level of participation, the district court listened to Gardner’s many phone calls with Mayfield. It also took the 17 kilograms of cocaine attributed to Gardner into account. Viewing this evidence together, the court found Gardner was “well within this drug conspiracy.” ( Id. at 1433.) To be sure, Gardner may not have been the ringleader, like Mayfield, or the primary supplier, like Gentry. But his participation was far from limited. And the district court did not overestimate his role.
As for Gardner’s codefendants, he’s right that many received shorter sentences for similar amounts of drugs. And it’s true that the Guidelines instruct courts to “avoid unwarranted sentence disparities.” 18 U.S.C. § 3553(a)(6). But that factor is concerned with national disparities among similarly situated defendants, “not disparities between particular codefendants.” Conatser , 514 F.3d at 521 (citation omitted). Besides, many of Gardner’s codefendants cooperated with the government and received “very significant 5K motions.” (R. 1219, PageID 11417.) Of course, those motions alone may not “explain the [] disparities.” (Gardner Br. at 47.) But that’s where Gardner’s extensive criminal history comes into play. Gardner had a criminal history category of IV. Many of his codefendants had a criminal history category of I or II. And with Gardner’s higher criminal history came a higher Guidelines range.
In the end, Gardner “does not identify any argument that he raised and the district court
failed to address.”
United States v. Ely
,
Federal-Benefits Eligibility.
Gardner also contests another part of his sentence: the
imposition of a lifetime ban on federal benefits. Gardner pleaded guilty to one count of
conspiracy to distribute and possess with the intent to distribute cocaine and cocaine base. The
district court found this conviction required a permanent bar on Gardner’s receipt of federal
benefits under 21 U.S.C. § 862(a). At sentencing, Gardner protested the application of § 862(a)
to his sentence. (
Id.
) Because he raised the issue below, we review the district court’s
interpretation of § 862(a) de novo.
United States v. Spencer
,
Section 862 provides for the denial of federal benefits for defendants convicted of drug offenses. The length of this federal-benefit ban depends on two variables: (1) the kind of offense and (2) the number of prior convictions. In this vein, § 862 distinguishes between “[d]rug traffickers” and “[d]rug possessors.” 21 U.S.C. § 862(a), (b). A drug-trafficking offense consists of the “distribution of controlled substances.” Id. § 862(a). If a defendant has one distribution conviction, the district court may order him ineligible for “all [f]ederal benefits for up to 5 years.” Id. § 862(a)(1)(A). At two such convictions, the time increases to “up to 10 years.” Id. § 862(a)(1)(B). And “upon a third or subsequent [distribution] conviction,” a defendant is “permanently ineligible for all [f]ederal benefits.” Id. § 862(a)(1)(C).
The district court found that Gardner fell into that last category. It decided that Gardner’s drug-conspiracy conviction qualified as his third drug-trafficking offense. And that conviction permanently disqualified him from the receipt of federal benefits.
The lifetime ban raises an issue of first impression in this Court: Does conspiracy to distribute and possess with intent to distribute qualify as an “offense consisting of the distribution of a controlled substances” under § 862(a)? Gardner says that it doesn’t, and the government concedes he’s right. We agree with the parties’ shared position.
Section 862(a) covers offenses consisting of the “distribution of a controlled substance.”
21 U.S.C. § 862(a). Distribute means “to deliver (other than by administering or dispensing) a
controlled substance.” 21 U.S.C. § 802(11). Delivery, in turn, is defined as “the actual,
constructive, or attempted transfer of a controlled substance.”
Id.
§ 802(8). So for an offense to
fall under § 862(a), it must include “actual distribution,” or a completed delivery (which would
include an attempted transfer), as an element.
See United States v. Williams
, 541 F.3d 1087,
1090 (11th Cir. 2008) (per curium). If Congress had meant otherwise—intending § 862(a) also
to cover offenses consisting of the
intention
or a
conspiracy
to distribute—it could have said so.
But it didn’t.
See United States v. Silva-De Hoyos
,
Turn to the conviction at hand. Gardner pleaded guilty to one count: conspiracy to
distribute and possess with intent to distribute cocaine and cocaine base under 21 U.S.C. § 846.
That offense requires three things. First, “an agreement to violate drug laws, in this case
21 U.S.C § 841.”
United States v. Deitz
, 577 F.3d 672, 677 (6th Cir. 2009). Second,
“knowledge and intent to join the conspiracy.”
Id.
And third, “participation in the conspiracy.”
Id.
;
cf. United States v. Potter
,
IV.
For these reasons, we affirm the district court on all claims but one. “‘involving’ possession” that merits the application of § 862(b)’s five-year ban. (Gov. Br. at 179.) Gardner, of course, argues the other way. He asks us to limit our remand to the removal of § 862(a)’s lifetime ban.
We decline to take either path. The imposition of § 862(b)’s one-to-five-year ban, unlike § 862(a)(1)(C)’s lifetime ban, is left to the district court’s discretion. So on remand, the district court may consider—in the first instance—whether Gardner’s drug-conspiracy conviction falls into § 862(b)’s ambit.
Notes
[1]
See Young
,
[2]
On appeal, Kolarich also argues that “[a] defendant is not automatically foreclosed from safety valve relief
because [she] go[es] to trial and [is] convicted.” (Kolarich Br. at 36.) This Court hasn’t yet taken a firm stance “in
the debate over whether a guilty verdict precludes safety valve relief for a defendant whose safety-valve statement
contradicts the verdict.”
See United States v. Honea
,
[3]
Five of our sister circuits have reached similar conclusions about the reach of § 862(a).
See, e.g.
,
Silva-De
Hoyos
, 702 F.3d at 849 (holding that a conviction for possession with intent to distribute was not an offense
consisting of distribution under § 862(a));
United States v. Jacobs
,
[4] The parties agree on the remand but disagree about its scope. The government admits § 862(a) doesn’t cover Gardner’s conspiracy conviction. But it doesn’t leave it at that. Instead, it offers an alternative: § 862(b). Section § 862(b) imposes a one-to-five-year ban on federal benefits for offenses “involving the possession of a controlled substance.” The government urges us to hold that Gardner’s drug-conspiracy conviction is an offense