USA v. Todd Simmon

Filing

OPINION filed : We AFFIRM the district court's sentence, decision not for publication. Damon J. Keith, Circuit Judge; Eric L. Clay, Circuit Judge and Helene N. White, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0725n.06
No. 14-2306

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
Oct 29, 2015
DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN

TODD SIMMONS,
Defendant-Appellant.

BEFORE:

KEITH, CLAY, and WHITE, Circuit Judges.

CLAY, Circuit Judge. Following his guilty plea to possession of a firearm by a person
convicted of a felony in violation of 18 U.S.C. § 922(g)(1), Defendant Todd Simmons
(“Defendant”) challenges (1) the district court’s application of the four-level sentencing
enhancement pursuant to United States Sentencing Guideline § 2K2.1(b)(6)(B) and (2) the
substantive and procedural reasonableness of his 96-month sentence in light of his request for a
variance based on his alleged mental and physical health issues. For the following reasons, we
AFFIRM the sentence imposed by the court.
BACKGROUND
On February 14, 2014, officers with the Kent Area Narcotics Enforcement Team
(“KANET”) executed a state search warrant authorizing the seizure of any drugs, drug
paraphernalia, or firearms located at the Grand Rapids, Michigan residence shared by Defendant

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and his fiancée, Connie Reid. After Defendant and Reid surrendered without incident, officers
discovered: (1) a black case containing a Colt 5.56 x 45mm, M16 A2, automatic rifle (“rifle”)
located in the upstairs bedroom on the west side of the residence; (2) five rifle magazines loaded
with 5.56 and .223 caliber ammunition in the west bedroom; (3) three boxes of an unspecified
type of ammunition located in the upstairs bedroom on the east side of the residence; (4) a rifle
magazine in the east bedroom; (5) four jars of marijuana in the east bedroom; (6) two
“containers” of marijuana in the east bedroom; (7) $156.00 in cash in the east bedroom; (8) a
syringe containing a brown liquid located in the kitchen; and (9) a loaded Taurus .40 caliber
semiautomatic pistol (“pistol”) hidden in a concealed space within the stairwell leading to the
basement. When police searched Defendant, they found $2,402.00 in cash on his person.
At the plea hearing, Defendant stated the following in support of his guilty plea.
Defendant purchased both the rifle and the pistol “from somebody off the streets.” (R. 53, Plea
Hr’g Tr., PageID #203–04). Normally, both firearms were kept in a bag, along with a tactical
vest, in Defendant’s bedroom closet. Defendant did not keep the firearms loaded, but stored
ammunition in the same location. However, on the day KANET officers executed the search
warrant, Defendant removed the pistol from its usual location and went to the basement with the
intention of committing suicide. After reconsidering, Defendant “stuck the gun in the wall” and
surrendered. (Id. at 202).
On February 14, 2014, the government filed a criminal complaint charging Defendant
with being a convicted felon in possession of one or more firearms in violation of 18 U.S.C.
§ 922(g)(1).

Approximately two months later, the government filed a superseding felony

information charging the same offense. Pursuant to a plea agreement, Defendant pleaded guilty

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before a magistrate judge. The magistrate judge issued a Report and Recommendation advising
that Defendant’s guilty plea be accepted, and the district court accepted the plea of guilty.
The presentencing probation officer filed an initial presentence report (“Initial PSR”) on
June 16, 2014. Following Defendant’s objections to the Initial PSR, the probation officer filed a
final presentence report (“Final PSR”) on July 31, 2014. In his objections, Defendant disputed
the Initial PSR’s statement that KANET, through an unidentified criminal informant (“CI”), had
conducted eight controlled purchases of illicit substances from Defendant. The objected-to
paragraph in the Initial PSR stated:
As a way of background, KANET began investigating [Defendant] after receiving
information from a confidential informant (CI) that [Defendant] was trafficking
marijuana from his residence and in possession of firearms. The CI reported
he/she previously observed about ½ pound of marijuana inside [Defendant’s]
residence and also observed the defendant handling a fully automatic M16 rifle
and two .40 caliber handguns. The CI stated [Defendant] told him/her the M16
rifle was stolen from the 44th Street Armory. KANET subsequently conducted
eight controlled buys of controlled substances from [Defendant] through the CI.
(R. 30, Initial PSR, PageID #54) (emphasis added). In objecting to this paragraph, Defendant
asserted:
KANET did not conduct eight controlled buys from [Defendant]. The CI had
eight controlled buys during the course of his work with KANET. Those eight
unrelated buys were the basis of the CI’s credibility in the search warrant which
authorized the search of [Defendant’s] home. You have the buys as being with
[Defendant].
(R. 32, Objections to PSR, PageID #73).
Defendant also objected to paragraph 38 of the Initial PSR, which described a four-level
enhancement to Defendant’s base offense level pursuant to U.S.S.G. § 2K2.1(b)(6)(B).
Paragraph 38 of both PSRs identified the felony associated with Defendant’s unlawful
possession of the firearms as “possession with intent to distribute marijuana,” but neither cited a
federal, state, or local statute underlying this drug-related crime. (R. 30, Initial PSR, PageID
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#57; R. 33, Final PSR, PageID #81). In his objections, however, the only issue Defendant
identified regarding the application of the enhancement was that his possession of the firearms
was not “in connection with another felony offense” because the firearms were not in “close
proximity” to the marijuana. (R. 32, Objections to PSR, PageID #73). In this vein, Defendant
maintained that “[w]hile some ammunition was found in the same bedroom as the drugs, the
firearms were not in the same bedroom.” (Id.).
The Final PSR, which was filed after Defendant made the aforementioned objections,
omitted any reference to the CI purchasing marijuana from Defendant as part of a controlled
buy, but noted that the CI had observed a half-pound of marijuana in Defendant’s residence. The
Final PSR also explicitly stated that the CI’s more general statement that Defendant was
“trafficking marijuana from his residence” remained undisputed because Defendant “did not
raise an objection to the[] [statement’s] factual accuracy.” (R. 33, Final PSR, PageID #78, 96).
Regarding Defendant’s mental and physical health, the Final PSR noted that Defendant
reportedly attempted to commit suicide by jumping in front of a moving vehicle on an
unspecified date in 2011. Following this incident, Defendant claimed, he was “in a coma for
three months” and “formally diagnosed as bipolar and manic depressive.” (R. 33, Final PSR,
PageID #90). At a separate, unspecified point in time, Defendant was prescribed the medications
Risperdal and Paxil “to manage his mental health issues.” (Id.). According to the Final PSR,
Defendant believed “his mental health problems [we]re attributable to the beginning stages of
Huntington’s disease[,] . . . a hereditary brain disorder that leads to severe physical and mental
disabilities.”

(Id.) (quotation marks omitted).

However, although Defendant’s mother

“purportedly suffered from [Huntington’s disease],” Defendant had not been tested for or
diagnosed with that condition. (Id.).

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On August 22, 2014, Defendant filed a motion to adjourn sentencing pending a
neurological examination and genetic testing to ascertain whether he had symptoms of
Huntington’s disease or possessed the gene underlying the disease.

In his supporting

memorandum, Defendant (1) noted that every child of a parent with Huntington’s disease has a
“50/50 chance of inheriting the expanded gene that causes the disease,” (2) expressed his belief
that he was already experiencing symptoms of the disease based on his 2011 suicide attempt and
diagnosis as bipolar or manic depressive, and (3) contended, without further elaboration, that “an
evaluation . . . prior to sentencing would be helpful to the court’s assessment of the factors
envisioned in 18 U.S.C. § 3553(a)(1).” (R. 36-1, Mem., PageID #102–03). In an order issued
August 25, 2014, the district court adjourned Defendant’s sentencing hearing and instructed
Defendant to file a supplemental brief documenting the types of tests required to screen
Defendant for Huntington’s disease, as well as identifying the persons who would perform and
pay for these tests.
In his supplemental brief, Defendant informed the court that mandatory protocol for
Huntington’s disease requires that prior to any genetic testing, patients not currently exhibiting
neurological symptoms undergo psychological counseling and evaluation, followed by a
neurological examination or genetic counseling. Defendant explained that this process could
“take upwards of six months,” and asserted that the only viable alternative was enlisting a
neurologist to examine Defendant for symptoms, which would cost $200, and then paying for
any further genetic testing ordered by the neurologist, which would likely cost another $300.
Defendant concluded that this second course of action, which called for (1) a six to eight-week
waiting period before Defendant could see the next available neurologist, (2) transportation by
the United States Marshals or furlough from detention to facilitate Defendant’s appointments

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with the neurologist, and (3) fees totaling approximately $500, was the “only . . . reasonably
available pathway to the testing.”

(R. 38, Suppl. Br., PageID #107).

After reviewing

Defendant’s supplemental brief, the district court denied the motion for a medical examination
on the grounds that “[t]he examination . . . described in defendant’s supplemental submission
[wa]s nearly impossible to obtain in any reasonable time frame before sentencing and would not
assist the Court in any tangible way in its assessment of [the 18 U.S.C. §] 3553 factors.” (R. 39,
Suppl. Order, PageID #108).
On October 2, 2014, Defendant filed a motion for a variance and sentencing
memorandum asserting that “the factors enumerated in 18 U.S.C. § 3553(a) . . . warrant[ed] a
sentence below the guidelines.” (R. 42, Sentencing Mem., PageID #111). The sentencing
memorandum also reiterated Defendant’s objection to the application of a § 2K2.1(b)(6)
enhancement solely on the basis that there was an insufficient nexus between the possession of
firearms and the drug possession.
At the sentencing hearing, the district court advised the parties that it had tentatively
calculated Defendant’s case as Offense Level 25, Criminal History Category IV under the United
States Sentencing Guidelines, resulting in an advisory guideline range of 84 to 105 months’
imprisonment. This was also the range reflected in the Final PSR. In challenging the proposed
four-level enhancement under § 2K2.1(b)(6), Defendant argued that there was no indication that
the half-pound of marijuana observed at Defendant’s residence had “any connection with [his]
gun possession.” (R. 47, Sentencing Hr’g Tr., PageID #125). Defendant emphasized that (1) the
marijuana was found in a bedroom in which no weapons were found, (2) ammunition, without a
compatible firearm, could not have “any effect whatsoever” in furthering a felony, and (3) a
half-pound of marijuana was “not a huge amount of drugs” and therefore did not support the

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government’s “fortress theory.” (R. 47, Sentencing Hr’g Tr., PageID #125–26, 130). Defendant
also reiterated his request for a variance based on the “mental illness component [of] []his case,”
noting that he was currently taking Celexa and Risperdal for his “mental illness issues” and had a
family history of Huntington’s disease. (Id. at 133). Arguing that his case was “not terribly
egregious,” but instead involved “the simple possessing of guns when he was prohibited from
doing so,” Defendant asserted that a sentence below the advisory guideline range was “perhaps”
warranted. (Id. at 134).
The district court ultimately rejected Defendant’s entreaty for a variance from the
guideline range, finding that “[a] sentence towards the middle of the advisory guideline range
[was] the appropriate sentence.” (Id. at 140). The court based this conclusion on several
considerations, including (1) Defendant’s criminal history, (2) the need to specifically deter
Defendant, who had served a previous sentence related to a weapons violation and presented a
“high risk to re-offend,” and (3) protection of the public. (Id. at 138–39). The court also opined
that “possession of drugs with intent to deliver and possession of firearms is a toxic mix.” (Id. at
140).

In acknowledgment of Defendant’s mental health concerns, the district court

recommended that Defendant be evaluated and receive appropriate treatment for his medical
issues, including his possible Huntington’s disease, and that Defendant be enrolled in substance
abuse treatment. Ultimately, the district court entered a judgment sentencing Defendant to
96 months of incarceration, plus two years of supervised release. Defendant timely appealed.

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DISCUSSION
I.

Application of the Sentencing Enhancement
a. Standard of Review
In his objections to the Initial PSR, his sentencing memorandum, and at sentencing,

Defendant disputed the applicability of the § 2K2.1(b)(6) enhancement on the grounds that there
was an insufficient nexus between the firearms and a separate felony offense.

However,

Defendant concedes that he did not object to the enhancement based on the alleged lack of proof
supporting the independent felony. Appellant’s Br. at 29.
In general, when a defendant objects to the trial court’s application of a sentencing
enhancement, this Court reviews for abuse of discretion. United States v. Wright, 464 F. App’x
475, 481 (6th Cir. 2012) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). However, we
apply a more nuanced standard to challenges to a § 2K2.1(b)(6) enhancement. One prerequisite
for applying the enhancement is “a nexus between the firearm and an independent felony.”
United States v. Burns, 498 F.3d 578, 580 (6th Cir. 2007). In reviewing a court’s fact-specific
findings regarding the existence of a nexus, we accord “due deference to the district court’s
determination that the firearm was used or possessed in connection with the other felony.”
United States v. Taylor, 648 F.3d 417, 431–32 (6th Cir. 2011) (internal quotation marks
omitted); United States v. Wellington, 468 F. App’x 529, 531 (6th Cir. 2012). The district court’s
factual findings are reviewed for clear error. Taylor, 648 F.3d at 432. “A factual finding is
clearly erroneous if, ‘although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.’”
United States v. Woods, 26 F. App’x 448, 450 (6th Cir. 2001) (quoting United States v.
Gort-DiDonato, 109 F.3d 318, 320 (6th Cir. 1997)).

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b. Sufficiency of the Nexus Between the Firearms and an Independent Felony
Defendant argues that “a close review of the case law and the guideline[s]” reveals that
the district court’s application of the § 2K2.1(b)(6) enhancement was erroneous because (1) the
government’s fortress theory could not support application of the enhancement where only
ammunition, and not the firearms themselves, was found in “close proximity” to the marijuana
and (2) there was no proof of the independent offense—possession with intent to distribute
marijuana—nor identification of a statute governing such an offense. Appellant’s Br. at 15–16,
20–22, 30–31, 36–37.

In response, the government contends that the presence of several

containers of marijuana in Defendant’s residence, the discovery of approximately $2,500 in cash
on Defendant’s person and in his bedroom, Defendant’s modest source of legitimate income,1 the
CI’s undisputed statement that Defendant was trafficking marijuana from his home, and the
proximity of Defendant’s firearms and ammunition to the marijuana, all supported the district
court’s finding that the § 2K2.1(b)(6) enhancement applied. Appellee’s Br. at 15–17, 19–24.
The government also asserts that the district court properly relied on these facts, and any
reasonable conclusions drawn therefrom, because these facts were included in the Final PSR and
not contested by Defendant. Appellee’s Br. at 15.
“The Guidelines provide for a four-point enhancement to the defendant’s base offense
level ‘[i]f the defendant used or possessed any firearm or ammunition in connection with another
felony offense.’”

Taylor, 648 F.3d at 432 (quoting U.S.S.G. § 2K2.1(b)(6)).

Although

§ 2K2.1(b)(6) does not define the phrase “in connection with,” the accompanying application
note states that the enhancement should be applied “if the firearm or ammunition facilitated, or

1

According to the Final PSR, Defendant’s only source of income at the time of his arrest
was Social Security Disability benefits in the amount of $670.00 per month.
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had the potential of facilitating, another felony offense or another offense.”

U.S.S.G.

§ 2K2.1(b)(6) cmt. n. 14(A); United States v. Angel, 576 F.3d 318, 321 (6th Cir. 2009). “[I]n the
case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug
manufacturing materials, or drug paraphernalia,” application of the enhancement may be
warranted “because the presence of the firearm has the potential of facilitating another felony
offense.” U.S.S.G. § 2K2.1(b)(6) cmt. n.14(B)(ii). “[T]he presence of drugs in a home under a
firearm conviction does not ipso facto support application of [the] enhancement,” Taylor,
648 F.3d at 432 (citation and internal quotation marks omitted), and application “is not warranted
if possession of the firearm ‘is merely coincidental to the underlying felony offense.’” United
States v. Seymour, 739 F.3d 923, 929 (6th Cir. 2014) (citation omitted) (emphasis added). Thus,
for a district court to appropriately apply the § 2K2.1(b)(6) enhancement, the government must
show, by a preponderance of the evidence, a nexus between the firearm and an independent
felony. Angel, 576 F.3d at 321.
Under the fortress theory, a sufficient nexus is established if it reasonably appears that
firearms found on the premises, which are owned, controlled, or possessed by the defendant, “are
to be used to protect the drugs or otherwise facilitate a drug transaction.” United States v.
Ennenga, 263 F.3d 499, 503 (6th Cir. 2001) (citation and internal quotation marks omitted).
“Put differently, § 2K2.1[(b)(6)] applies if the firearm had some emboldening role in a
defendant’s felonious conduct.” Angel, 576 F.3d at 321 (citation and internal quotation marks
omitted). Courts in this Circuit consider many factors in determining whether the fortress theory
applies, including the proximity of the firearm or ammunition to drugs or drug paraphernalia,
Ennenga, 263 F.3d at 503–04; Angel, 576 F.3d at 321–22, the possession of large amounts of
cash in close proximity to the drugs, Seymour, 739 F.3d at 930, the amount of drugs in

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defendant’s possession, id. at 930–31; United States v. Shields, 664 F.3d 1040, 1045 (6th Cir.
2011), the type of firearm and whether it was loaded, Taylor, 648 F.3d at 433; see also United
States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001), and whether the defendant’s possession of
the firearm was legitimate or illegal, Mackey, 265 F.3d at 462.
In overruling Defendant’s objection to the enhancement, the district court observed that
the presence of more than one firearm in Defendant’s residence, ammunition in the same room as
the marijuana, and approximately $2,500 in cash in the house, supported a finding that the
fortress theory applied. The court also asserted that the half-pound of marijuana in Defendant’s
residence, as observed by the CI, was a sufficient quantity for the court to infer, under a
preponderance of the evidence standard, possession with intent to distribute on the part of
Defendant. Citing the majority holding in United States v. Coleman, 627 F.3d 205, 212–14 (6th
Cir. 2010), the district court opined that Defendant’s “possession of ammunition in close
proximity to the marijuana [wa]s sufficient for the application of the enhancement” when
considered with these other facts. (R. 47, Sentencing Hr’g Tr., PageID #131–32). Finally, in
addition to the aforementioned findings of fact, the district court erroneously stated that
Defendant had failed to object to the Initial PSR’s statement that he was “selling marijuana to a
CI.” (Id. at 130).
Unsurprisingly, Defendant takes issue with the district court’s unfounded assertion that
he did not object to the Initial PSR’s allegation that the CI purchased marijuana from him.
Appellant’s Br. at 24, 33–34. Indeed, Defendant is correct that the district court erred when it
made this finding. Although the Initial PSR referenced KANET conducting eight controlled
buys from Defendant through the CI, following Defendant’s objection that the controlled buys

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did not actually involve him, the Final PSR omitted any allegation of controlled purchases from
Defendant.
This error alone, however, does not render the district court’s finding that Defendant was
trafficking marijuana from his residence clearly erroneous. Under the clear error standard, we
look at the entirety of the evidence to determine whether a mistake has been made, Woods, 26 F.
App’x at 450, and “[c]lear error will only be found where, after reviewing all the evidence, we
are left with the ‘definite and firm conviction that a mistake has been made.’” United States v.
Woodard, 337 F. App’x 534, 537 (6th Cir. 2009) (citation omitted). Here, as indicated by the
government, Appellee’s Br. at 17, Defendant never objected to, and the Final PSR therefore
included, the CI’s statements that (1) Defendant “was trafficking marijuana from his residence”
and (2) the CI had observed a half-pound of marijuana inside Defendant’s residence. (R. 33,
Final PSR, PageID #78; R. 32, Objections to PSR, PageID #73). These allegations, and not just
the jettisoned statement about the controlled buys, constituted “admitted conduct by the
defendant contained in the presentence report” on which the court relied. (R. 47, Sentencing
Hr’g Tr., PageID #131).
District courts may accept uncontested factual allegations presented in a presentence
report and draw reasonable conclusions therefrom. United States v. Mitchell, 63 F. App’x 224,
229–30 (6th Cir. 2003); see also United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008)
(en banc) (“By failing to object to the presentence report, [a defendant] accept[s] all of the
factual allegations contained in it”); United States v. Carter, 355 F.3d 920, 925 (6th Cir. 2004)
(“The district court is allowed to accept as true all factual allegations in a presentence report to
which the defendant does not object.”) (citation and quotation marks omitted). Here, although
Defendant objected to the allegation that he sold illicit substances to the CI as part of any

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controlled buy, he did not contest that he was trafficking marijuana from his residence.2 Further,
the district court drew the reasonable conclusion that Defendant was trafficking based on the
half-pound of marijuana the CI observed in Defendant’s residence—another factual allegation
Defendant failed to contest. In light of Defendant’s failure to dispute these factual allegations,
we conclude that the evidence on which the district court properly relied, viewed in its entirety,
does not give rise to a “definite and firm conviction” that the district court erred in its finding
that the enhancement was applicable based on the independent felony of possession with intent
to distribute marijuana. Woodard, 337 F. App’x at 537. Thus, we find that there was no clear
error.
The other facts supporting the district court’s acceptance of the fortress theory and
application of the § 2K2.1(b)(6)(B) enhancement are more straightforward. Defendant’s rifle
and five rifle magazines were located in the upstairs west bedroom, while the six containers of
marijuana found in the house were located in the upstairs east bedroom. This Court has affirmed
the application of the § 2K2.1(b)(6)(B) enhancement where the drugs and firearms at issue were
less proximate. See, e.g., Ennenga, 263 F.3d at 500–01, 503–04 (defendant stored his marijuana
plants in the furnace room and in the bed of a pickup truck parked outdoors, kept a small amount
of marijuana in the bedside cabinet of his basement apartment, and maintained five firearms,
with ammunition, in a locked locker located in the hallway of the basement); Taylor, 648 F.3d
at 433 (firearm was not found in the same room as the drugs, but defendant was trafficking drugs
2

We are unpersuaded by Defendant’s argument that he was not required to object to the
CI’s statements about his alleged marijuana trafficking because they constituted hearsay.
Appellant’s Br. at 23–24, Appellant’s Reply at 3–4. Courts may rely on hearsay statements
contained in a PSR where they are sufficiently reliable. Williams, 601 F. App’x at 425 (citing
United States v. Moncivais, 492 F.3d 652, 658–59 (6th Cir. 2007)); accord U.S.S.G. § 6A1.3(a).
Further, Defendant provides no support for his bald assertion that these statements lacked
sufficient indicia of reliability. See Appellant’s Br. at 35–36.
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from his house and the firearm was loaded and found on the floor of his bedroom). Further,
although the firearms were not loaded, Defendant routinely kept the rifle and the pistol in the
same location as the ammunition—the west bedroom closet—another consideration supporting
the district court’s acceptance of the fortress theory. See Angel, 576 F.3d at 319–20, 322
(affirming application of the enhancement where the defendant stored ammunition in nightstand
next to his bed and kept a total of three firearms, only one of which was loaded, in the bedroom);
Coleman, 627 F.3d at 208, 212–13 (affirming application of the enhancement where no firearms
were found but the defendant stored 23 live rounds of ammunition in the same location where he
stored marijuana). Finally, although Defendant was unemployed between 2011 and his arrest in
February 2014, and his only documented source of legitimate income was $670.00 per month in
Social Security Disability benefits, he had approximately $2,500 in cash—on his person and in
the east bedroom—on the day KANET executed the search warrant. Such a large amount of
cash in close proximity to the marijuana, particularly in light of Defendant’s modest income,
supports application of the enhancement. See Seymour, 739 F.3d at 930. Taken together, and
viewed under the deferential standard applied to § 2K2.1(b)(6) enhancements, Taylor, 648 F.3d
at 431–32, we find that the undisputed facts support the district court’s conclusion that
Defendant unlawfully possessed firearms in connection with drug trafficking and conclude that
the district court’s application of the § 2K2.1(b)(6) enhancement was proper.
c. Identification of the Independent Felony
In his briefs and at oral argument, Defendant focused on the government’s failure to
identify a federal, state, or local law underlying Defendant’s alleged possession with intent to
distribute marijuana. Appellant’s Br. at 30–31, 36–40; Oral Arg. at 1:37–2:52. Indeed, there is
no indication that the government ever identified a statute associated with Defendant’s alleged

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drug felony in this case. However, for the reasons stated below, we find that the government’s
decision not to identify the underlying statute at issue, where the felony itself was identified in
the PSR and at sentencing, though far short of best practices, was not fatal to the district court’s
application of the enhancement.
Defendant relies primarily on this Court’s holdings in United States v. Bullock, 526 F.3d
312 (6th Cir. 2008), abrogated on other grounds by Taylor, 648 F.3d at 431, and United States v.
Ford, 571 F. App’x 378 (6th Cir. 2014), to support his assertion that the government was
required to identify the statute and statutory elements underlying his alleged possession with
intent to distribute marijuana in order for the district court to apply the § 2K2.1(b)(6)
enhancement. See Appellant’s Br. at 37–38. Neither case so holds. In Bullock, we addressed the
defendant’s argument that the district court engaged in “double counting” when it applied the
§ 2K2.1(b)(6) enhancement because “all firearms by definition are capable of facilitating another
felony offense.” 526 F.3d at 315. We observed that rather than permitting federal judges to
punish defendants more severely based on the unlawful possession of a firearm, standing alone,
the § 2K2.1(b)(6) enhancement applies only to “those particular defendants whose unlawful
firearm possession has created a heightened risk of violence” due to the firearm’s connection
with an independent felony. Id. at 316–17. In that vein, we noted that “[w]hile the particular
independent felony need not be charged, the felony must be specifically identifiable in order for
the government to demonstrate that ‘the defendant possessed or used a gun in connection with’
it.” Id. at 317 (citations omitted). Nothing in Bullock stands for the proposition that the
government must cite a relevant statute in order to fulfill its obligation to identify the specific
felony at issue. Although citation, in most cases, would either facilitate or prove essential to both
the district court’s analysis and our own, Bullock does not mandate citation and we see no reason

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to impose such a requirement today where Defendant’s independent felony—marijuana
trafficking—was one of the uncontroverted allegations in the Final PSR on which the district
court permissibly relied in making its findings of fact.3
Ford is similarly unhelpful to Defendant’s position. There, the independent felony
offense supporting the § 2K2.1(b)(6)(B) enhancement was felonious assault. Ford, 571 F. App’x
at 379. At sentencing, the defendant argued that the elements of felonious assault had not been
met because there was no proof that he knowingly or intentionally caused the victim to
reasonably fear imminent bodily injury. Id. at 379–80, 382. Despite the defendant’s arguments,
the district court never affirmatively found that there was sufficient evidence to conclude that the
defendant caused the victim to reasonably fear bodily harm. Id. at 382. Based on the district
court’s failure to find that the elements of felonious assault were met despite the controverted
factual record, this Court vacated the defendant’s sentence and remanded for re-sentencing. See
id. at 382 (stating that once the defendant indicated that the element of reasonable fear had not
been proven, “it became incumbent upon the court to ‘affirmatively rule’ on the ‘controverted
matter’”); see also Fed. R. Crim. P. 32(i)(3)(B) (requiring district courts to either rule on disputes
involving controverted portions of a sentencing report or explicitly find that such a ruling is
unnecessary).
Here, both the Final PSR and the district court identified the independent felony
supporting the application of the § 2K2.1(b)(6)(B) enhancement as possession with intent to
distribute marijuana. In his written objections and at sentencing, Defendant neither disputed that
the elements of this independent felony were met, nor indicated that the government should be
3

We confine our holding to the unique facts of this case and note that in the vast majority
of cases, it would be highly ill-advised for the government to seek a § 2K2.1(b)(6) enhancement
without identifying the statute underlying the alleged independent felony.
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required to cite the federal, state, or local law underling this felony.4 Additionally, Defendant
did not contest or dispute the CI’s statements, contained in both the Initial and Final PSRs, that
Defendant was trafficking marijuana from his residence and had a half-pound of marijuana
therein.

Due to Defendant’s failure to identify any controverted matter regarding the

independent felony supporting the enhancement prior to this appeal, we find the rationale for
reversal pronounced in Ford inapplicable to the facts of this case and conclude that the district
court properly accepted as true the factual allegations in the Final PSR that Defendant was
trafficking marijuana from his residence. See Fed. R. Crim. P. 32(i)(3)(A) (“At sentencing, the
court . . . may accept any undisputed portion of the presentence report as a finding of fact”);
Vonner, 516 F.3d at 385.
II.

Procedural and Substantive Reasonableness of the Sentence
Defendant argues that his 96-month sentence is procedurally and substantively

unreasonable because the court “effectively refused” to consider his request for a variance based
on his alleged mental and physical health issues. Appellant’s Br. at 42. Because Defendant
answered “no” to the court’s inquiry as to whether he had any legal objections to the sentence
imposed, we review Defendant’s procedural unreasonableness claim for plain error. United
States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010).5 Defendant’s substantive unreasonableness

4

As observed by Defendant himself, Appellant’s Br. at 36, Michigan Compiled Laws
§ 333.7401, is one statute the government presumably could have cited when it identified
Defendant’s alleged drug crime. Under this statute, possession with intent to deliver marijuana
in an amount of five kilograms or less is punishable by imprisonment of not more than four
years. Mich. Comp. Laws § 333.7401(2)(d)(iii).
5
District courts are advised to make such inquiries pursuant to our holding in United
States v. Bostic, 371 F.3d 865 (6th Cir. 2004). See United States v. Batti, 631 F.3d 371, 379 n.2
(6th Cir. 2011); Wallace, 597 F.3d at 802.
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claim is reviewed for abuse of discretion. United States v. Solano-Rosales, 781 F.3d 345, 355–
56 (6th Cir. 2015).
Defendant argues that the sentence imposed by the district court was procedurally
unreasonable because the court did not provide a sufficiently “extensive” explanation as to why
it denied Defendant’s motion to adjourn sentencing pending a medical evaluation and motion for
a variance based on his purported health issues. Appellant’s Br. at 46–47; Appellant’s Reply
at 9–10. Additionally, Defendant maintains that the district court’s failure to order a medical
evaluation made it impossible for the court to properly account for Defendant’s medical history
and therefore resulted in a sentence that was substantively unreasonable because it was greater
than necessary under the factors enumerated in 18 U.S.C. § 3553(a). See Appellant’s Br. at 46–
48.
“[A] sentence may be procedurally unreasonable if the district court did not consider the
applicable Guidelines range or neglected to consider the factors set forth in 18 U.S.C. § 3553(a)[]
and instead simply chose a sentence that the judge deemed appropriate.” United States v.
Vowell, 516 F.3d 503, 510 (6th Cir. 2008); United States v. Bolds, 511 F.3d 568, 579 (6th Cir.
2007). Similarly, “[w]hen a defendant raises a particular argument in seeking a lower sentence,
the record must reflect both that the district judge considered the defendant’s argument and that
the judge explained the basis for rejecting it.” Bolds, 511 F.3d at 580 (citation and internal
quotation marks omitted). Overall, “[t]he district court must provide an articulation of the
reasons [it] reached the sentence ultimately imposed,” that “allow[s] for meaningful appellate
review.” Solano-Rosales, 781 F.3d at 351 (citation and internal quotation marks omitted).
After hearing from the parties at sentencing, the district court noted that it had
“considered all of the defendant’s arguments in support of his request for a lower sentence,” as

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well as “the nature and circumstances of the offense, and the history and characteristics of the
defendant.” (R. 47, Sentencing Hr’g Tr., PageID #136). In light of these considerations, and the
other factors articulated under 18 U.S.C. § 3553(a), the court (1) recommended that Defendant
receive a mental health evaluation, counseling, and appropriate treatment while in prison,
(2) suggested that his mental health needs and treatment take priority over assuring that he be
imprisoned close to home, and (3) required Defendant to participate in “a program of mental
health treatment,” as directed by his probation officer, as part of his supervised release. With
regard to other factors properly considered under § 3553(a), the court articulated concerns about
Defendant’s potential to re-offend in light of his past convictions for weapons-related crimes—
including his conviction for assault with intent to murder—and expressed doubt about whether
Defendant would avoid future weapons violations.

Based on Defendant’s “high risk to

re-offend,” the court concluded that protection of the public and specific deterrence of Defendant
were “significant” factors in its determination that a sentence in the middle of the advisory
guidelines range was appropriate. (R. 47, Sentencing Hr’g Tr., PageID #139–41). On this basis,
the court denied Defendant’s motion for a variance, finding that the factors favoring a variance
were “significantly outweighed” by other factors that favored a sentence within the advisory
guideline range. (Id. at 141–43).
In his reply brief, Defendant cites United States v. Wallace, 597 F.3d 794 (6th Cir. 2010),
for the proposition that the district court was required to both consider, and explain its reasons
for rejecting, Defendant’s motion for a variance. Appellant’s Reply at 9–10. Indeed, in Wallace,
this Court held that “[w]hen a defendant raises a particular[, nonfrivolous] argument in seeking a
lower sentence, the record must reflect both that the district judge considered the defendant’s
argument and that the judge explained the basis for rejecting it.” 597 F.3d at 803 (second

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alteration in original) (quoting United States v. Gapinski, 561 F.3d 467, 474 (6th Cir. 2009)).
However, the record before us belies Defendant’s argument that the district court failed to
consider the motion for a variance or explain its reasons for denying it. Thus, there is no
indication that Defendant’s sentence was procedurally unreasonable.
“[R]eview of a sentence for substantive reasonableness ‘requires inquiry into . . . the
length of the sentence and the factors evaluated . . . by the district court in reaching its sentencing
determination.’”

United States v. Cochrane, 702 F.3d 334, 345 (6th Cir. 2012) (citation

omitted). In making the substantive reasonableness inquiry, we examine the totality of the
circumstances, including whether the sentence imposed by the district court deviates from the
advisory guidelines range. Id. Because Defendant’s 96-month sentence falls within the advisory
guideline range of 84 to 105 months, we accord it a presumption of reasonableness. United
States v. Douglas, 563 F. App’x 371, 376 (6th Cir. 2014).
Defendant argues that the sentence imposed by the district court is substantively
unreasonable due to the court’s failure to adequately account for the possibility that he had
“life threatening Huntington’s Disease.” Appellant’s Br. at 44–46. Defendant also maintains
that his sentence is substantively unreasonable because, due to the district court’s failure to order
a medical evaluation following his motion to adjourn sentencing, the court was “uninformed
[about] [Defendant’s] medical history and current health status and thus a valid § 3553 analysis
could not be made.” Appellant’s Br. at 48.
With regard to Defendant’s second argument, Defendant does not cite, and we are not
aware of, any authority to support the proposition that a sentence is substantively unreasonable if
a district court fails to order a medical test or examination that would shed more light on the
Defendant’s history or characteristics pursuant to 18 U.S.C. § 3553(a)(1). Further, the district

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court’s sentence clearly accounted for Defendant’s mental health concerns, related or unrelated
to Huntington’s disease, and Defendant has provided no argument or authority for his apparent
position that his mental health problems should have resulted in an automatic reduction of his
sentence.

To the contrary, this Court has consistently upheld sentences as substantively

reasonable—even where the defendant had well-documented psychiatric problems—as long as
the sentence accounted for the defendant’s mental health concerns and the other factors listed
under 18 U.S.C. § 3553(a). See, e.g., United States v. Infante-Cabrera, 538 F. App’x 706, 707–
08 (6th Cir. 2013); United States v. Nesbitt, 390 F. App’x 497, 500–03 (6th Cir. 2010).
As indicated, when the district court imposed the 96-month sentence at issue, it
considered Defendant’s mental health issues and possible Huntington’s disease, the type of
medical care Defendant would receive while in custody and as part of his supervised release,
Defendant’s previous weapons-related convictions, the seriousness of the pending charge against
him in light of those convictions, the need to specifically deter Defendant from committing
future weapons-related offenses, and the importance of protecting the public. Based on these
considerations, the court arrived at a sentence that fell in the middle of the advisory guideline
range. We find that the sentence is substantively reasonable in light of the § 3553(a) factors.
CONCLUSION
For the reasons stated in this opinion, we AFFIRM the district court’s sentence.

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