UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ZACHARY JOHN KENNEDY, Defendant-Appellant.
No. 21-1741
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
April 11, 2023
23a0071p.06
KETHLEDGE, WHITE and BUSH, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:21-cr-00037-1—Paul Lewis Maloney, District Judge. Decided and Filed: April 11, 2023.
COUNSEL
AMENDED OPINION
HELENE N. WHITE, Circuit Judge. Defendant-Appellant Zachary Kennedy was sentenced to 210 months in prison after pleading guilty to a charge of conspiracy with intent to distribute various drugs. He appeals his sentence, asserting two guideline scoring errors and a violation of the Federal Rules of Criminal Procedure. We AFFIRM.
I.
Kennedy was charged with conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine, fentanyl, heroin, and crack cocaine in violation of
Count 1 specifically charged a conspiracy from “in or about November 2019 and continuing until in or about January 2021, in Muskegon County.” R.38, PID 171. Kennedy stipulated that he “was involved in a drug trafficking conspiracy that distributed 50 grams or more of actual methamphetamine, as well as heroin, fentanyl, and crack cocaine in West Michigan.” Id. PID 172. During the conspiracy, he “routinely purchased or otherwise obtained his drugs from a variety of co-conspirators, while at other times [he] supplied his co-conspirators with the illegal drugs that they required in order to sell to their customers.” Id. He “frequently used cellular telephones and various social media accounts, including Facebook, to coordinate with his co-conspirators and to set up various drug deals.” Id. “After obtaining the drugs, [Kennedy] then sold them on numerous occasions,” including a sale of “approximately 99 grams of actual methamphetamine” on November 26, 2019, and another sale of “approximately 270 grams of actual methamphetamine” on December 10, 2019. Id. PID 172-73.
Kennedy‘s presentence report calculated a base offense level of 32 based on between 150 and 500 grams of at least 80% pure methamphetamine, sometimes called “ice,” see
II.
Kennedy challenges his sentence on three bases, asserting (1) the firearm enhancement was improperly applied; (2) the district court failed to honor the read-and-discuss requirement under
A.
We start with the firearm enhancement, to which Kennedy objected in
1.
The Sentencing Guidelines increase a defendant‘s offense level for a drug-trafficking crime by two points “[i]f a dangerous weapon (including a firearm) was possessed.”
We have endorsed the use of a burden-shifting framework at sentencing to determine whether the firearm enhancement applies. “Once the government establishes by a preponderance of the evidence that ‘(1) the defendant actually or constructively “possessed” the weapon, and (2) such possession was during the commission of the offense,’ the burden shifts to the defendant to show that it was ‘clearly improbable’ that the weapon was connected to the offense.” United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007) (quoting United States v. Hill, 79 F.3d 1477, 1485 (6th Cir. 1996)). “If [the defendant] fails to meet this burden, the district court should apply the enhancement.” Id. at 606-07 (citing United States v. Shults, 68 F. App‘x 648, 653 (6th Cir. 2003)). Several factors may be considered in this analysis, including:
(1) the type of firearm involved; (2) the accessibility of the weapon to the defendant; (3) the presence of ammunition; (4) the proximity of the weapon to illicit drugs, proceeds, or paraphernalia; (5) the defendant‘s evidence concerning the use of the weapon; and (6) whether the defendant was actually engaged in drug-trafficking, rather than mere manufacturing or possession.
United States v. Greeno, 679 F.3d 510, 515 (6th Cir. 2012), abrogated on other grounds by N.Y. State Rifle & Pistol Ass‘n v. Bruen, 142 S. Ct. 2111 (2022). Possession must be during the offense of commission or relevant conduct, United States v. Faison, 339 F.3d 518, 520 (6th Cir. 2003), which includes “all acts and omissions committed or aided and abetted by the defendant . . . that occurred during the commission of the offense of conviction,” United States v. McDowell, 902 F.2d 451, 454 (6th Cir. 1990) (quoting
To support the enhancement here, the government included several exhibits with its sentencing memorandum. Five exhibits consisted of text messages sent or received by Kennedy in November and December 2020—within the span of the conspiracy. Of note, on December 21, 2020, Kennedy received a message from someone named Fresh, asking if Kennedy had any “vezzo“—a code name for methamphetamine—and Kennedy responded, “How much.” R.61-2, PID 380. When Fresh asked for an ounce, Kennedy replied he did not have that but offered to put
In addition to the text messages, the government submitted a photograph from Kennedy‘s phone that appears to be a screenshot of a FaceTime conversation between Kennedy and a woman, showing Kennedy staring into the camera with a handgun pointed at the lens. It is time stamped showing it was last modified on January 9, 2021, a date within the conspiracy.
The district court followed our two-step, burden-shifting framework at Kennedy‘s sentencing. First, the court found that the government had shown “by at least a preponderance of the evidence” that Kennedy possessed firearms “during the course of the conspiracy.” R.67, PID 458. The court stated that Kennedy‘s “traffic via social media” was “fraught with many references to firearms closely connected to drug deals being perpetrated by [Kennedy],” and concluded that “the text traffic, as well as the photograph . . . established possession.” Id. PID 457-58. Second, the district court found Kennedy did not meet his burden of showing it was “clearly improbable that his possession of the firearms was . . . connected to the drug trafficking.” Id. PID 458. The court found Kennedy was “directing individuals, including his customers, to store, pick up, [and] transport firearms.” Id.
We conclude that the district court did not err in applying the firearm enhancement, although we caution that the government showed the bare minimum necessary and this case rests at the outer bounds of our decisions on the firearm enhancement.
First, we find no clear error in the court‘s factual determination that the government proved by a preponderance of the evidence that Kennedy possessed a firearm during the commission of the conspiracy. The text conversations around December 21, 2020, establish that Kennedy had at least constructive possession of firearms at that time and that he was actively involved in the drug conspiracy at the same time. To be sure, the district court might have overstated the government‘s evidence when it found that Kennedy‘s text messages were “fraught with many references to firearms closely connected to drug deals being perpetrated,” given that Kennedy‘s exchange with Fresh was the only one that involved guns and drugs, and the messages around December 21, 2020 (including the conversation with Fresh) are the only messages that show Kennedy‘s involvement with guns at the same time as his drug activity. See R.67, PID 458. But these text conversations allow for the conclusion that Kennedy possessed firearms during the commission of the drug conspiracy.
Second, we find no clear error in the court‘s factual determination that Kennedy
On balance, the government has made a sufficient showing on the firearm enhancement. See Greeno, 679 F.3d at 515. In the government‘s favor, unlike a hunting rifle or antique firearm, the firearms here do not have an obvious purpose unrelated to drug trafficking. Cf.
Given the government‘s limited showing, we emphasize that a sentencing court must rely on more than “supposition and ‘mere allegation.‘” United States v. Hatcher, 947 F.3d 383, 396 (6th Cir. 2020) (quoting United States v. Blackman, 625 F. App‘x 231, 237 (6th Cir. 2015)). Indeed, in firearm-enhancement cases, we have refused to hold the burden of proof strictly against a defendant where the government‘s argument is highly speculative. In Blackman, we held there was not enough evidence to find a connection between the defendant‘s firearm possession and drug conspiracy where the only evidence of firearm possession was a photograph of the defendant with a firearm taken shortly before the defendant traveled for the conspiracy. 625 F. App‘x at 235-37. Although Blackman “did not offer evidence of his legitimate, innocent possession of the firearm in the . . . photo,” it was “[e]qually true . . . that the government offered absolutely no evidence to the contrary.” Id. at 237. However, unlike in Blackman—in which there was no evidence of drug possession, sales, or any other drug activity on the date of the photograph—the government showed that Kennedy both possessed guns and engaged in drug-trafficking activities on the same date. See id.
2.
Kennedy challenges the district court‘s reasoning on several bases, none of which convince us that the district court committed
Kennedy next contends that the photo of him with a gun was “obviously modified,” and notes that the “only information the government included about the photo is the date it was modified.” Id. at 11. He underscores the need for evidence at sentencing to have “sufficient indicia of reliability to support its probable accuracy” and flags that the government has shown when the image was modified, not created. Appellant‘s Reply Br. at 2 (quoting
This argument fails to persuade as well. To begin, Kennedy did not object to the photo at sentencing; rather, counsel acknowledged “a photograph of my client holding a gun” and that it was likely Kennedy‘s own photograph. R.67, PID 454. As for reliability, the district court fairly relied on the government‘s representations of having obtained the photograph from Kennedy‘s phone. The “obvious[]” modifications Kennedy suggests are that the image has been fit diagonally within a black border, and a separate image of a woman appears in the upper left hand corner. See Appellant‘s Br. at 11. But any format changes do not suggest the image was fabricated, and the image of a woman seems simply to be part of a FaceTime call or other digital communication. Turning to Blackman, that decision is informative but not determinative. In Blackman, which was unpublished, the only link between the defendant and firearm possession was the photograph, which was taken days before the defendant traveled to participate in the conspiracy and before the photographs of drugs found on his phone were taken. Blackman, 625 F. App‘x at 235-37. Here, the photograph—albeit without indication of when it was created—was produced alongside numerous text messages discussing firearms, including conversations that show constructive possession at the same time as drug-trafficking activities.
Third, Kennedy argues the government did not show enough to rely on a “reasonable foreseeability” argument. The firearm enhancement can be applied to a defendant if a firearm is possessed by a co-conspirator because
Fourth, Kennedy argues the district court made errors of law because it “erroneously combined constructive possession and reasonably foreseeable possession by others into a ‘totality of the circumstances’ determination,” and further “it required Kennedy to show that it was clearly improbable that the (unidentified) guns, even though not present, were connected to relevant conduct.” Appellant‘s Br. at 24. As to the first point, again, though the district court‘s reference to Kennedy‘s co-conspirators is ambiguous, the court did not engage in a reasonably foreseeable analysis, and the totality-of-the-circumstances determination considered text messages concerning firearms, which were properly part of the court‘s decision to apply the firearm enhancement. As to the second point, there were guns identified—the gun in the photograph and the guns discussed in the text exchanges—that Kennedy could have shown had a purpose unrelated to drugs. Indeed, Kennedy‘s attorney argued at sentencing that the guns “may have more to do, in fact all to do, with [Kennedy‘s] gang membership.” R.67, PID 455. He simply failed to support the argument with evidence.
Fifth, Kennedy argues that the “government never claims specifically which facts support a finding of actual possession and which support a finding of constructive possession of a weapon despite the fact that these two states of possession are mutually exclusive.” Appellant‘s Reply Br. at 1 (citing United States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)). But the government specifically cites in its brief the text exchanges among Kennedy, his girlfriend, and Mulley as evidence of constructive possession, and the government presumably considers the photograph of Kennedy with a handgun to be evidence of actual possession. Moreover, while constructive possession and actual possession may be mutually exclusive, there is no reason the government could not show that Kennedy had constructive and actual possession of firearms at different points over the course of the conspiracy.
Sixth, Kennedy makes a broad-sweeping argument based on statutory-interpretation principles to suggest that the Sixth Circuit‘s burden-shifting scheme—at least as applied by the district court here—gives insufficient meaning to the word “present,” rendering it synonymous with “possessed.” As outlined above, the firearm enhancement applies “[i]f a dangerous weapon . . . was possessed,”
Kennedy rightly emphasizes the word “present“; even so, the government met its burden here. Our burden-shifting scheme accounts for the word “present” by requiring that the government show both that
Determining whether a firearm was present during the commission of the offense or relevant conduct within the meaning of
In other instances, we have conducted a more searching inquiry of whether a firearm was possessed during the commission of a conspiracy. For example, in United States v. Dunlap, the defendant argued that the government had not shown enough because it “failed to prove that he possessed [a] weapon during a narcotics transgression.” 209 F.3d 472, 476 (6th Cir. 2000), abrogated in part on other grounds as recognized in United States v. Camacho-Arellano, 614 F.3d 244, 250 (6th Cir. 2010). Rather than simply finding that possession during the conspiracy was enough, we found that the government met its burden because the defendant weighed crack cocaine in front of an informant to whom he sold a firearm, which he did for the “manifest purpose of (1) notifying the [informant] that those illegal stimulants
Given the lack of clarity on this issue and the need to give meaning to the word “present,” we now make clear that, in the context of a long-running drug-trafficking conspiracy, the government needs to show some nexus between the demonstrated firearm possession—actual or constructive—and the defendant‘s activities in pursuit of the conspiracy; possession cannot simply be possession at any point during the conspiracy, without regard to any nexus. Here, the government showed a sufficient nexus for the district court to find that Kennedy possessed a firearm during the commission of the conspiracy to distribute and possess with intent to distribute controlled substances, including methamphetamine. The government showed Kennedy constructively possessed firearms on December 21, 2020, and on the same day, he exchanged text messages in which he discussed potentially selling methamphetamine. We note, however, that had the text messages discussing a potential drug sale with Fresh not been provided to the court, the government would have failed to establish the requisite nexus. With the text messages, the government showed enough, albeit barely, to establish that the firearms Kennedy constructively possessed were “present” during the commission of the drug conspiracy, and therefore the burden properly shifted to Kennedy.
B.
Kennedy also argues that the district court erred by failing to comply with
Plain-error review has four components. “First, there must be an error or defect—some sort of ‘deviation from a legal
Failure to comply with
Kennedy contends that it is unclear on this record whether the district court satisfied
Mitchell makes clear that so long as the district court can determine that defendant and counsel had the requisite discussion,
Lastly, Kennedy argues the trial court erred when it calculated his base offense level based on the Guidelines distinction between pure methamphetamine and methamphetamine mixtures. Crimes involving pure methamphetamine trigger a ten-year mandatory penalty at 50 grams, while crimes involving a methamphetamine mixture trigger a ten-year mandatory penalty at 500 grams.
III.
For the reasons stated, we AFFIRM.