UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIE R. BENTON, JR., Defendant-Appellant.
No. 19-3287
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: April 30, 2020
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0129p.06
Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 5:18-cr-00406-1—John R. Adams, District Judge.
Before: MOORE, McKEAGUE, and READLER, Circuit Judges.
COUNSEL
ON BRIEF: Robert A. Dixon, Cleveland, Ohio, for Appellant. Bryson N. Gillard, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee.
CHAD A. READLER, Circuit Judge. Willie Benton was arrested after purchasing four kilograms of powder cocaine during a transaction in his home. Benton later pleaded guilty to conspiring to possess with the intent to distribute and conspiring to distribute cocaine, a plea he does not contest. But he does contest his sentence for that offense. Benton asserts that the district court improperly calculated his Federal Sentencing Guidelines range by adding as “relevant conduct” to his underlying offense three kilograms of crack cocaine found in a safe in his home. See
I. BACKGROUND
After a month of planning, Willie Benton and Armando Merida met at Benton‘s Akron-area home to complete a drug transaction. Unfortunately for the two, they were not alone in that respect. The DEA had been surveilling their actions.
The transaction itself was brief. Upon parking in Benton‘s driveway, Merida went inside Benton‘s home carrying about four kilograms of powder cocaine. Moments later, Merida exited the home and drove away. Having observed the circumstances surrounding the transaction, DEA
Benton was charged with conspiring to possess with the intent to distribute and conspiring to distribute cocaine, in violation of
The parties then turned their attention to sentencing. The Presentence Report (or “PSR“) calculated Benton‘s total offense level as 33. Critical to that conclusion was the underlying drug quantity calculation. The PSR added to the four kilograms of powder cocaine delivered by Merida the three kilograms of crack cocaine found in Benton‘s safe, which the PSR deemed to be “relevant conduct” under
At Benton‘s sentencing hearing, the district court heard testimony from Keith Taggart, a forensic chemist employed by the Ohio Bureau of Criminal Identification. Taggart testified that all of the contraband seized by the police—both the four kilograms delivered by Merida and the three kilograms in the upstairs safe—contained detectable amounts of cocaine or cocaine base. The government also called Michael Gilbride, an Akron police officer detailed to the DEA‘s Cleveland field office at the time of Benton‘s arrest, who participated in the investigation of Benton. Gilbride testified that the crack cocaine recovered from the upstairs bedroom was highly adulterated. Nevertheless, Gilbride added that Benton was likely selling it, perhaps with little success, and that the three kilograms discovered in the safe were what remained from an earlier five-kilogram purchase made by Benton. For corroboration, Gilbride referenced a call to Benton surveilled by DEA wiretap. During the call, a woman in Cleveland complained to Benton about the poor quality of the cocaine Benton had sold her. Gilbride also confirmed that a firearm was recovered next to the safe in the upstairs bedroom.
At the close of testimony, the district court turned to Benton‘s objections to the PSR. Chief among them was Benton‘s objection to the computation of the drug quantity. Benton argued that the crack cocaine stored in the upstairs safe was “unsellable” “junk,” meaning that he could not have possessed the crack cocaine with intent to distribute it. The government countered with evidence it had obtained through a wiretap which demonstrated
Benton fared no better in his request for a downward departure based upon his criminal history assessment. Benton‘s criminal history included past cocaine possession and trafficking convictions, weapons convictions, numerous community control and probation violations, and a bevy of convictions for operating a vehicle under the influence and driving with a suspended license. Benton argued that this admittedly lengthy criminal history was nonetheless unworthy of category VI because seven of his twelve total criminal history points were assessed to misdemeanor—not felony—offenses. The government countered that category VI underrepresented Benton‘s criminal history, noting that Benton had several times been assessed no criminal history points for felony offenses, including his prior cocaine possession, cocaine trafficking, and weapons convictions. Citing this “extraordinary record of misdemeanor offenses, let alone felony convictions,” the district court denied Benton a downward departure.
The district court also denied Benton‘s request for a sentence similar to the 84-month prison term imposed on Merida. Critical to the district court‘s conclusion were the stark differences between the two defendants, including Merida‘s very limited criminal record. Adopting the PSR‘s proposed Guidelines range of 235 to 293 months and following an analysis under
On appeal, Benton argues that the sentence imposed by the district court is both procedurally and substantively unreasonable. We take up those arguments now.
II. ANALYSIS
A. Benton‘s Sentence Was Procedurally Reasonable.
1. The Three Kilograms Of Crack Cocaine Were Properly Counted As Relevant Conduct.
The heart of Benton‘s appeal is that his possession of three kilograms of crack cocaine was not “relevant conduct” for purposes of the Guidelines.
A defendant‘s uncharged trafficking offense for one controlled substance can constitute relevant conduct when the defendant is sentenced for trafficking in another. Gill, 348 F.3d at 151 (“[T]ypes and quantities of drugs not specified in the count of conviction may be considered in determining the offense level. See [
Benton‘s framing of the issue, however, erroneously focuses on what might (or might not) have occurred as a result of his conduct, rather than his intent underlying that conduct. That is clear from the offense‘s elements. “[T]he elements of possession with intent to distribute” include “(1) knowingly or intentionally, (2) possessing, (3) with the intent to distribute, (4) a controlled substance.” United States v. Buchanan, 933 F.3d 501, 510 (6th Cir. 2019) (emphasis added) (citation and internal quotation marks omitted). For the “intent to distribute” element, distribution is defined broadly to include, among other things, sales. United States v. Moore, 423 F. App‘x 495, 500 n.2 (6th Cir. 2011) (citing United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995)). With these concepts in mind, the question is thus not whether Benton could sell the crack cocaine at the time it was seized, but whether he intended to sell (and thereby distribute) that crack cocaine. Whether a sale could actually come to fruition turns on a variety of factors, including price, quantity, quality, and opportunity. See Food Lion, LLC v. Dean Foods Co. (In re Se. Milk Antitr. Litig.), 739 F.3d 262, 279 (6th Cir. 2014) (discussing the effect of price, supply, and demand on market behaviors). But whether Benton intended to sell the crack cocaine turns only on Benton‘s mental state. See United States v. Price, 134 F.3d 340, 351 (6th Cir. 1998) (explaining that a conviction for possession with intent to distribute
Benton takes issue with some apparent confusion by the district court at sentencing as to whether the DEA wiretaps provided evidence that Benton was trafficking in powder or crack cocaine. True, at one point during the hearing, the district court appears to have incorrectly stated that a transaction captured on the wiretap involved the sale of crack, rather than powder, cocaine. Though the district court later corrected any misunderstanding, Benton claims that this sequence of events nevertheless infected the district court‘s factual findings because the court corrected itself only after overruling Benton‘s relevant conduct objection. But the district court, to its credit, took the issue head on. It noted its prior misunderstanding, and then, on the proper record, simply declined to change its mind that Benton intended to sell the three kilograms of crack cocaine because his prior transactions involved “cocaine of some form.”
With the benefit of the district court‘s factual finding that Benton intended to sell the crack cocaine, Benton‘s possession of that substance easily qualifies as relevant conduct as to his powder cocaine conviction under either avenue set forth in
For purposes of the Guidelines, conduct is not unrelated, moreover, simply because it involves trafficking in a different substance, or because the purportedly related activity occurs at different times. In Phillips, we found that the defendant‘s three instances of possession of a firearm years apart were relevant conduct under
2. Benton‘s Sentence Was Otherwise Procedurally Reasonable.
Benton also takes issue with the district court‘s perceived overemphasis of the Guidelines range in setting his sentence. To Benton‘s eye, his sentencing hearing “had the look and feel of a sentencing proceeding held before the landscape of sentencing was modified post-Booker,” which made the Guidelines range advisory. United States v. Booker, 543 U.S. 220 (2005). Benton principally faults the district court for overemphasizing his criminal history, which the PSR placed in the maximum category of VI. But the record belies his claim. The district court discussed in detail Benton‘s crime, history, and characteristics as well as the need to deter Benton from future crime, the need to protect the public, and the possibility that a lengthy sentence might rehabilitate him. Those items were particularly relevant in answering Benton‘s objection that Merida received a much lower sentence. In so doing, the district court emphasized the key differences between the two men, including their respective crimes and criminal histories. Further, before passing sentence, the district court referred to the Guidelines as advisory several times. And having done all that, the district court was “tempted to,” but ultimately did not, “impose a sentence outside of the [G]uidelines” range based on the information presented.
There was good reason for the district court repeatedly to discuss Benton‘s criminal history in passing sentence. The court
B. Benton‘s Sentence Was Substantively Reasonable.
Benton also argues that his 260-month sentence was substantively unreasonable. Unlike challenges predicated on procedural grounds, where our focus is on the manner in which a sentence was calculated, substantive challenges focus on the length of the sentence itself. United States v. Clayton, 937 F.3d 630, 642-44 (6th Cir. 2019). And thus unlike reviewing a mechanical calculation of the Guidelines range, we instead have before us more intangible considerations. For passing sentence is more art than science, and one that reasonable jurists undertake in diverse ways. Rayyan, 885 F.3d at 442. We accordingly afford significant deference to a district court‘s balancing of the
No abuse of discretion occurred. As the evidence presented at sentencing reflected, Benton is a career criminal who regrettably broke the law as a matter of course. Whether it was possessing, abusing, or trafficking drugs, carrying weapons while on probation, driving under the influence, or domestic violence, crime was Benton‘s lifestyle. Add to that Benton‘s present offenses. Benton possessed with intent to distribute four kilograms of powder cocaine with an additional three kilograms of crack cocaine and a firearm upstairs, despite his well-established status as a felon. Those offenses, serious in their own right, were nonetheless just part of an ongoing criminal enterprise that filled Benton‘s pockets while harming his community. And despite that history of misconduct, in many respects, Benton, as the prosecutor described things, had never received more than “a slap on the wrist.” We thus see no abuse of discretion in the 260-month sentence imposed by the district court.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.