Case Information
*1 Before: KEITH, MERRITT, and LARSEN, Circuit Judges.
DAMON J. Keith, Circuit Judge. Appellant Troy McFarland, Sr. (“McFarland”) is serving a 200-month federal sentence for conspiring to distribute a controlled substance. After a wiretap investigation led to his arrest, agents searched his residence and found drugs, drug paraphernalia, and two firearms. He was charged with a single count on a multi-count, multi- defendant indictment, and pled guilty without a plea agreement. McFarland’s Sentencing Guidelines calculations included enhancements for firearm possession and for being a leader in a conspiracy. McFarland appeals his below-Guidelines sentence. For the reasons that follow, we AFFIRM McFarland’s sentence.
I.
A. Investigation and Arrest
McFarland was charged with a single count of conspiring to distribute Oxycodone, Oxymorphone, and Hydromorphone in violation of 21 U.S.C. §§ 841(a)(1), 846. The count contained four co-defendants: Daunte Lillard (“Lillard”), Troy McFarland, Jr. (“McFarland, Jr.”), Rachel Siegelman (“Siegelman”), and Willie Thompson (“Thompson”). The events leading up to and surrounding his arrest are as follows.
From September 2014 through April 2015, the Drug Enforcement Administration (“DEA”) investigated the distribution of diverted prescription pills and heroin in the Middle District of Tennessee. As a part of this investigation, DEA agents used wiretaps to intercept calls and text messages between the co-conspirators.
In February 2015, DEA agents intercepted a call between McFarland and Lillard, a co- defendant, in which McFarland instructed Lillard to deposit money into two bank accounts belonging to Tyesha Braithwaite. McFarland told Lillard to go to two different banks to avoid detection by authorities. A DEA agent testified at McFarland’s sentencing hearing that McFarland supplied diverted pills to Lillard. In a second call that same day, McFarland also told Lillard that he bought ten phones to hand out to his organizational members, and explained that if members only used the phones to communicate with each other, law enforcement could not intercept their calls. Later that month, DEA agents intercepted another call, in which McFarland instructed Lillard to deposit money into another account, this time belonging to Matthew Henson, and provided Lillard with the account number.
On April 7, 2015, Los Angeles Sheriff’s Department officers stopped Shantoya Fannin (“Fannin”) at the Los Angeles International Airport (“LAX”), where they seized $20,260 *3 concealed inside toiletry boxes within her suitcase. Agents searched her phone, and discovered that about a week earlier, Fannin texted McFarland and told him that she needed money. From the text messages, agents learned that on April 3, 2015, McFarland arranged for Fannin to fly to Nashville from Los Angeles, where McFarland, Jr. picked her up from the airport and drove her to a Marriott Hotel. Two days later, agents believe that Siegelman—another co-defendant—gave Fannin the money. Fannin returned to Los Angeles the next day, where she was detained. Fannin told agents that she was to receive $2,000 for transporting the money. Shortly after she was stopped, agents intercepted a phone call from Fannin to McFarland that lasted about seven minutes. Within minutes after speaking with Fannin, McFarland called Lillard and said, “throw that phone away” and “kill the line.” Agents believe that McFarland instructed Lillard to discard his cellphone because the money was seized.
Twelve days later, using GPS data from McFarland’s cellphone, agents learned that he was near a home located at 712 Cielo Vista Road in Lexington, Kentucky. While conducting surveillance, agents noticed a blue Chrysler and a gold Hyundai frequenting the home. After detecting McFarland’s phone leaving the area, Kentucky State Police conducted a traffic stop on McFarland’s vehicle—the blue Chrysler. McFarland consented to a search of his vehicle, and the state trooper found $5,000 cash on McFarland’s person, as well as the cellphone agents were tracking. McFarland was arrested for driving on a suspended license, and was picked up by McFarland, Jr. after being released from custody on bond. Agents used cellphone data to track McFarland traveling in McFarland, Jr.’s vehicle, and observed the gold Hyundai following McFarland, Jr. Officers stopped and searched both vehicles, but no guns or drugs were found. The driver of the gold Hyundai was identified as Siegelman.
Later that day, agents intercepted a call between Lillard and co-defendant Thompson discussing what agents believed was the impending sale of pills at the Marriott Courtyard Hotel. Agents observed Lillard, Thompson, and McFarland, Jr. meeting in the hotel parking lot, and approached their vehicles. When police ordered McFarland, Jr. out of Lillard’s vehicle, McFarland, Jr. reached into his pants and threw a large amount of cash—later determined to be approximately $24,000—on the vehicle’s console. Agents arrested the men, and afterwards went to a hotel room registered under the name “McFarland.” McFarland and Siegelman were in the hotel room, and agents took them into custody. Upon executing a search warrant on the hotel room, agents found and seized large amounts of diverted prescription pills, many that were in plain view and others that were concealed inside large vitamin bottles. After testing, it was determined that agents seized 871 Oxycodone 30-mg pills, 1,280 Oxymorphone 40-mg pills, and 945 Hydromorphone 4-mg pills.
Agents later learned that McFarland leased the Cielo Vista Road residence. Before executing a search warrant, agents knocked on the front door of the residence. A man and woman answered the door, and told agents that they received a late-night jail phone call from McFarland, who told them that the back door was unlocked and that they could stay at the residence while they were on vacation from California. After consenting to a search of their vehicle, the couple left the home. Agents also spoke with a neighbor, who said she observed a man matching McFarland’s description driving a dark blue or black Chrysler frequently park on the side street and go in and out of the back door of the residence. The agent showed the neighbor a picture of Siegelman, who the neighbor said she saw at the residence on a regular basis.
After obtaining a search warrant, agents searched the premises, where they found male and female clothes in the master bedroom. Agents also found McFarland’s driver’s license and letters *5 addressed to him on a nightstand. Hydrocodone pills, Oxycodone pills, and crack cocaine were found in the master bedroom, along with Siegelman’s passport and other documents containing her name. Agents also found a computer with “Troy McFarland” displayed above a password bar on the screen, and the lease to the residence with McFarland’s name on it elsewhere in the residence.
Agents found marijuana, Xanax pills, and heroin in the kitchen, and a kilo-press in the dining room. Elsewhere, agents located items consistent with drug trafficking, including four cellphones, cutting agents, electrical tape, gloves, masks, charcoal, food saver/sealer machines, and packaging materials.
In the attic, agents discovered a Helwan nine-millimeter handgun and magazine, and a Draco assault rifle and magazine. These weapons were sealed in what appeared to be the same packaging material found downstairs. Agents also found heroin sealed in packaging material in the attic about eight to ten feet away from the firearms.
B. Sentencing Hearing
On October 12, 2016, McFarland pled guilty without a plea agreement to a single count of conspiracy to distribute controlled substances. The probation office prepared a Presentence Report (“PSR”) with a Guidelines calculation. After receiving a two-point enhancement for possessing a firearm and a four-point enhancement for leadership in criminal activity involving five or more participants, McFarland received a total offense level of 33. See U.S.S.G. § 2D1.1(b)(1); U.S.S.G. § 3B1.1(a). For these charges, his criminal history category was five. This resulted in an advisory Guidelines range of 210 to 240 months imprisonment. The Government requested that the district court impose a sentence of 210 months.
McFarland filed objections to these enhancements. He first argued that the two-point firearm enhancement was unwarranted because the Government did not prove that he constructively possessed the firearms found in the attic, or that the firearms were connected to the offense. The district court overruled this objection, noting that because McFarland leased the premises and that his clothes and drugs were in proximity to the firearms “[i]t’s clear that he had constructive possession.” The district court also found that McFarland had not shown that it was clearly improbable that the firearms were connected to the offense .
McFarland also argued that he only deserved a two-point enhancement for leadership under § 3B1.1(c) because he only exercised control over one person, Shantoya Fannin. The district court overruled this objection, finding that McFarland was the leader of five or more people in a conspiracy.
Additionally, McFarland filed a motion in which he requested “a mitigated sentence and departure/variance below the sentencing guidelines.” He provided several arguments for a mitigated sentence and claimed that his criminal history was overstated. The district court denied his motion, finding that McFarland’s criminal history was not mitigated by the facts he presented.
In support of his argument for a variance, McFarland presented two witnesses at sentencing. First, Tyesha Braithwaite, testified that McFarland was a hands-on caregiver to their disabled son. Next, McFarland’s mother, Sara Allen, testified to McFarland’s challenging childhood, which included him being bullied because of his mother’s sexuality. McFarland also argued for a variance to avoid unwarranted sentencing disparity by presenting evidence of defendants who received lesser sentences than McFarland’s Guidelines range for trafficking similar drugs.
After acknowledging that the Guidelines are advisory and considering “the totality of all the facts involved in [this] case,” the district court concluded that there were “some redeeming factors about [McFarland] that perhaps might warrant a variance,” and sentenced McFarland to 200 months in prison.
II.
On appeal, McFarland argues: 1) the district court erred in increasing his offense level by two points for possessing a firearm; 2) he should not have received a four-point enhancement for leadership in criminal activity involving five or more participants; 3) his criminal history is overstated; and 4) the district court did not adequately meet the requirements of 18 U.S.C. § 3553 in fashioning his sentence.
A. Firearms Enhancement
McFarland first argues that the district court erred when it increased his offense level by two points for possessing a firearm in connection with the offense under U.S.S.G. § 2D1.1(b)(1). Specifically, he argues that the Government’s evidence did not establish that he was in constructive possession of the firearms. He also argues that even if the Government established constructive possession, the evidence showed that it was clearly improbable that the firearms were connected to his offense.
In order to justify an enhancement under § 2D1.1(b)(1), the Government “has the initial
burden of showing by a preponderance of the evidence that the defendant possessed the firearm.”
United States v. Ruiz Solorio
,
Because McFarland was not arrested with actual possession of the firearms, the Government must show he constructively possessed the firearms. The Government has met this burden by proffering additional incriminating evidence connecting him to the firearms. McFarland leased the residence where the guns were found. His driver’s license, computer, letters, clothes, and other personally belongings were found in the house, along with drugs and drug paraphernalia. All of this evidence establishes that McFarland knowingly had the power and intention to exercise dominion or control over the area where the firearms were found. See Ruiz Solorio , 337 F.3d at 599 (finding the Government met its burden of showing constructive possession where the defendant “leased the apartment where the guns were found”).
McFarland argues that he did not constructively possess the firearms because they were
hidden away in the attic. The location of these weapons does not change the court’s analysis under
this factual scenario. Considering that McFarland’s name was on the lease and that his personal
belongings were found throughout the residence, the evidence suggests that he could have
*9
retrieved the weapons whenever he wanted.
See Hough
,
McFarland also argues that he did not have exclusive dominion because Siegelman had as
many belongings in the house as he did. However, the same neighbor who saw Siegelman
frequenting the house also saw McFarland frequenting the house, as McFarland concedes. This,
coupled with the various personal and illegal items found at the residence McFarland leased,
provides sufficient incriminating evidence to show that McFarland knew of and controlled the
weapons. “The weapons were in easy reach had [McFarland] wished to get them.”
Hough
,
McFarland has not met his burden of showing that it was clearly improbable that the two
firearms were connected with the offense.
See Ruiz Solorio
,
B. Leadership Role Enhancement
Next, McFarland argues that he should not have received a four-level increase in his base offense level under § 3B1.1(a) for his leadership role in a criminal enterprise. He argues that instead, a two-level increase under § 3B1.1(c) would have been more appropriate.
“Traditionally, legal conclusions are reviewed de novo and factual findings are reviewed for clear error.” United States v. Washington , 715 F.3d 975, 982 (6th Cir. 2013). However, because the district court is best situated to legally conclude whether someone is a leader in a conspiracy under § 3B1.1, we grant this conclusion a deferential standard of review. Id at 983.
Under the Guidelines, a defendant’s base offense level should be increased by four levels
“[i]f the defendant was an organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive[.]” U.S.S.G. § 3B1.1(a). McFarland argues that this
enhancement is unwarranted because the district court did not justify its finding that McFarland
led five or more people. However, as the Government notes, to qualify for this enhancement,
McFarland only needed to have been the organizer or leader “of one or more other participants.”
U.S.S.G. § 3B1.1 application note 2.
See also United States v. Robinson
,
As McFarland acknowledges in his briefing, his attorney at sentencing conceded that he exercised control over Fannin—a participant in the conspiracy—who he instructed to fly to LAX from Nashville with over $20,000. Further, as the Government highlights, McFarland was *12 convicted of a conspiracy to distribute controlled substances with four co-defendants. The district court erred in suggesting that McFarland needed to be the leader of five or more people to qualify for the enhancement. However, given McFarland’s concession to being a leader of one individual in a conspiracy that involved at least six participants, under the plain language of the Guidelines, this error is harmless.
Accordingly, McFarland’s argument fails, and we defer to the district court’s decision to apply the enhancement.
C. Criminal History Category
McFarland next argues that his criminal history category under the Guidelines was overstated. Specifically, he argues that six criminal history points he received from two convictions in 1992 unfairly inflate his criminal history, unduly resulting in him earning a criminal history category of five.
As the Government notes, McFarland does not make clear whether he is seeking a
downward departure under U.S.S.G. § 4A1.3(b)(1), or a variance under 18 U.S.C. § 3553(a).
A “departure” refers to the imposition of a sentence outside of the calculated Guidelines range
based on the district court’s application of a particular Guidelines provision, whereas a “variance”
refers to a sentence outside the Guidelines range based on the district court’s consideration of one
or more of the 18 U.S.C. § 3553(a) sentencing factors.
United States v. Grams
,
If reliable information suggests that a defendant’s criminal history category substantially
over-represents the seriousness of the defendant’s criminal history, a downward departure may be
*13
warranted. U.S.S.G. § 4A1.3(b)(1). “A district court’s failure to grant a downward departure can
only be reviewed by us upon appeal if the lower court erroneously believed that it lacked authority
to grant such a departure as a matter of law.”
United States v. Lucas
,
After hearing arguments from both parties, the district court denied McFarland’s motion, finding that “the defendant’s criminal history is not mitigated by the facts counsel has presented.” There is no evidence that the district court was not aware it had the discretion to depart downward, so we decline to review its decision not to grant the departure.
McFarland argues that because the district court never mentioned “departure” in denying
his motion, his request for departure was never ruled upon. He requests a plain error review of his
criminal history. However, “we have not required that district courts carefully distinguish between
whether the decision to deviate from the advisory Guidelines range is based on a departure or
variance.”
United States v. Herrera-Zuniga
, 571 F.3d 568, 586 (6th Cir. 2009). “[C]hoice of
vocabulary is not dispositive” and instead “we must examine the transcript of the sentencing
hearing to determine whether the court was aware of . . . its authority to vary from the Guidelines
range.”
United States v. Borden
,
D. Reasonableness
McFarland argues that in sentencing him, the district court did not meet the requirements of 18 U.S.C. § 3553. He argues that the district court did not adequately explain its reasoning for sentencing him below the Guidelines, or convey that it had considered McFarland’s arguments at sentencing. Though unclear, it appears McFarland is challenging the reasonableness of his sentence, so we will treat his arguments as such.
A reasonableness inquiry has “both procedural and substantive components.”
United
States v. Jones
,
“We review a district court’s sentencing determination for reasonableness, using a
deferential abuse-of-discretion standard.”
United States v. Carson
,
1. Procedural Reasonableness
McFarland argues that the district court inadequately explained the reasonings behind its
sentence. This argument is a challenge to the procedural reasonableness of the sentence.
See Gall
v. United States
,
We are satisfied that the district court had a reasoned basis for fashioning its sentence. At
the sentencing hearing, the district court considered McFarland’s history and characteristics by
acknowledging McFarland’s “very tough childhood,” and recognized McFarland’s “compassion
for [his] son’s illness.” The district court considered the seriousness of McFarland’s offense by
*16
acknowledging that he put McFarland, Jr. and Siegelman, individuals he claimed to have cared
for, in a “vulnerable” position as his co-defendants. In saying that McFarland’s drug trafficking
offense “affected a lot of lives” and “fed their addictions,” the district court considered the need to
protect the public from McFarland’s further crimes. However, in analyzing the “totality of all the
facts” and considering the witnesses’ statements and the parties’ arguments, the district court
considered the possibility of McFarland coming out of prison a rehabilitated and “useful person.”
He recognized McFarland’s “redeeming factors,” and granted him a variance below the
Guidelines. Analyzing the record as a whole,
Rita
, 551 U.S. at 359, the district court clearly
explained why it chose its sentence, and incorporated McFarland’s arguments for variance into its
explanation.
See United States v. Bolds
,
2. Substantive Reasonableness
McFarland also argues that the district court failed to give sufficient weight to the need to
avoid unwarranted sentencing disparities, a § 3553(a) factor. Additionally, he questions whether
a 200-month sentence for McFarland—who at the time was fifty-one years old—is sufficient but
not greater than necessary to meet the goals of sentencing. These arguments are a challenge to the
substantive reasonableness of the sentence.
See Jones
,
In his motion for departure/variance, McFarland included a chart of dozens of cases in
which defendants who were convicted of similar conduct were sentenced for less time than
McFarland’s Guidelines range. At sentencing, McFarland explained that drug quantity was
previously measured by considering the weight of the active ingredient in the pill. In McFarland’s
case, drug quantity was calculated by considering the weight of the entire pill. McFarland contends
that calculating drug quantity using the prior method would reduce his base offense level, thereby
reducing his Guidelines range, which is a reason the district court should vary. The district court
was correct in rejecting McFarland’s request for variance based on a change in the way the
Guidelines are calculated as “this is not the kind of disparity § 3553(a)(6) is after.”
United States
v. Bradley
,
McFarland’s argument for variance based on his age also fails. “Although [McFarland] may have wanted the district court to show even greater leniency based on his age . . . the court’s decision not to do so does not render the sentence unreasonable.” United States v. Wolcott , 483 F. App’x 980, 989 (6th Cir. 2012). The district court’s below-Guidelines sentence is not substantively unreasonably.
III.
For the reasons stated above, we AFFRIM the district court’s sentence.