USA v. Stanley Anderson, Jr.

Filing

OPINION filed : Anderson's sentence and Thompson's sentence are both AFFIRMED, decision not for publication. Julia Smith Gibbons, Circuit Judge; Jane Branstetter Stranch, Circuit Judge and Pamela Lynn Reeves, U.S. District Judge. for the Eastern District of Tennessee, sitting by designation. [14-5245, 14-5371]

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0136n.06
Case Nos. 14-5245/5371

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Feb 19, 2015
DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,

)
)
)
)
)
)
)
)
)
)

Plaintiff-Appellee,
v.
STANLEY LAMONT ANDERSON, JR., and
JOHN THOMPSON,
Defendants-Appellants.

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
OPINION

BEFORE: GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Stanley Anderson, Jr. and John Thompson
pled guilty and were sentenced for their roles in an oxycodone distribution conspiracy, and they
now appeal their sentences. Anderson challenges the district court’s assessment of a sentencing
enhancement for obstruction of justice and also asserts a constitutional challenge to the court’s
finding of the number of trips he made to transport drugs. Thompson challenges the district
court’s finding of the quantity of oxycodone pills attributable to him, as well as the court’s
assessment of a sentencing enhancement for obstruction of justice and refusal to grant him credit
for acceptance of responsibility. As explained below, we affirm both defendants’ sentences.
I.
In June 2013, a cooperating witness informed the London (Kentucky) Police Department
that someone was supplying numerous oxycodone tablets on a daily basis to John Thompson and
*

The Honorable Pamela L. Reeves, United States District Judge for the Eastern District
of Tennessee, sitting by designation.

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 2

Nos. 14-5245/5371, United States v. Anderson, et al.
Michael Osborne, both of London. The police initiated surveillance and observed William Scalf
visiting Osborne’s residence. On June 19, acting at the direction of the police, the cooperating
witness purchased fifteen 30-milligram oxycodone tablets from Thompson for $680 and fifteen
such tablets from Osborne for $675. The next day, the cooperating witness told police that Scalf
would be delivering oxycodone to Thompson at another residence. The police again initiated
surveillance and observed Scalf entering and leaving the residence, after which the police
arrested Thompson, Osborne, and Scalf, and found Scalf to be in possession of 150 oxycodone
tablets.
Scalf agreed to cooperate with police. He told police that he had become involved in
drug trafficking through a man known to him only as “Cuz,” whom he had met only once in
Detroit approximately six months prior. Scalf said that from that point on, he coordinated drug
deals with Cuz by telephone and text message, but he met in person only with couriers sent by
Cuz approximately every week. The couriers would arrive in Cincinnati by Greyhound bus at
3:30 a.m., meet Scalf in a motel room in northern Kentucky, and sell him between 800 and 1,100
oxycodone tablets on each visit at a price of $23 per tablet. Scalf further told police that he
resold 75 oxycodone tablets to Thompson and 75 to Osborne every day at a price of $30 per
tablet.
Scalf told police that Cuz would be sending the next courier on June 21. That courier
was Stanley Anderson, Jr. After the Greyhound bus from Detroit arrived in Cincinnati at 3:28
a.m., Anderson disembarked and took a cab to a Super 8 Motel in Erlanger, Kentucky. Anderson
was then approached by law enforcement, at which time he dropped a bag found to contain 1,195
oxycodone tablets and 400 Xanax tablets, all hidden inside a Pringles can.

-2-

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 3

Nos. 14-5245/5371, United States v. Anderson, et al.
Anderson, Thompson, Osborne, and Scalf were indicted for conspiracy to distribute
oxycodone in violation of 21 U.S.C. § 846. Thompson and Osborne also were each indicted for
distribution of oxycodone in violation of 21 U.S.C. § 841(a)(1). All pled guilty. However, only
Scalf negotiated a written plea agreement with the government.
Before sentencing, Anderson and Thompson were each interviewed, as is routine, by the
United States Probation Office, which prepared a Presentence Investigation Report (PSR) for
each defendant. Anderson told the probation officer that he had made only one trip from Detroit
to deliver oxycodone. During an evidentiary hearing, however, Scalf testified that Anderson had
made four or five oxycodone deliveries. The court credited Scalf’s testimony and found that
Anderson was responsible for at least four deliveries.

Accordingly, the probation officer

recommended, and the district court decided, that Anderson should receive a two-offense-level
increase for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. As a result, Anderson had a
total offense level of 31, which alongside his criminal history category of I equated to a guideline
range of 108 to 135 months.

The district court sentenced Anderson to 121 months of

imprisonment. On appeal, Anderson challenges the district court’s decision to assess a two-level
enhancement for obstruction of justice, and he also argues that the court was not constitutionally
allowed to judicially find the fact that he had made at least four trips to transport drugs.
In the same evidentiary hearing where Scalf testified that Anderson had made at least
four drug runs from Detroit, Scalf also testified about the quantity of drugs that he had sold to
Thompson. Scalf testified that starting about five months prior to their arrest, he made five or six
deliveries to Thompson every week, of approximately 100 oxycodone pills per delivery.
According to Scalf, that pattern continued for approximately three months, until Thompson
began work at a road construction company in early April, at which point Scalf’s deliveries to

-3-

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 4

Nos. 14-5245/5371, United States v. Anderson, et al.
Thompson decreased to 50 or 75 pills about five times per week. But Thompson gave a
significantly different accounting of how much oxycodone he received from Scalf. During his
interview with the probation officer, Thompson said that he received 20 oxycodone pills from
Scalf on one occasion in February 2013, and then from March 1, 2013 to June 16, 2013 received
20 oxycodone pills two or three times weekly. Thompson also acknowledged receiving 70 pills
from Scalf on the day of his arrest in June 2013. Again crediting Scalf’s testimony, and
concluding that Thompson had made false statements about the quantity of oxycodone for which
he was responsible, the district court determined that the quantity of oxycodone attributable to
Thompson was 8,750 pills (100 pills six times per week for ten weeks through March 2013, and
50 pills five times per week for eleven weeks from April to June 20, 2013).

The court

accordingly imposed a two-offense-level enhancement on Thompson for obstruction of justice,
pursuant to U.S.S.G. § 3C1.1, and denied him any offense-level reduction for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1. Thompson thus had a final offense level of 34 and
criminal history category of III, corresponding to a guideline range of 188 to 235 months. The
court sentenced Thompson to 190 months.

On appeal, Thompson challenges the court’s

decisions to impose an enhancement for obstruction of justice and deny him credit for acceptance
of responsibility, as well as the court’s determination of the drug quantity attributable to him.
II.
We begin with Thompson’s challenge to the district court’s finding that 8,750 30milligram oxycodone pills were attributable to him for sentencing purposes. We review such
findings of fact for clear error. United States v. Russell, 595 F.3d 633, 646 (6th Cir. 2010). “A
factual finding is clearly erroneous where, although there is evidence to support that finding, ‘the
reviewing court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.’” Id. (quoting United States v. Ware, 282 F.3d 902, 907 (6th Cir. 2002)).
-4-

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 5

Nos. 14-5245/5371, United States v. Anderson, et al.
Thompson argues that the district court should not have credited Scalf’s testimony about
the quantity of pills. Thompson faces an uphill battle in making this argument, as we defer “to
the district court on credibility determinations unless they are ‘without foundation.’” United
States v. Pruitt, 156 F.3d 638, 647 (6th Cir. 1998) (quoting United States v. Lucas, 889 F.2d 697,
700 (6th Cir. 1989)). Thompson offers two reasons why the district court’s assessment of Scalf’s
credibility was mistaken. First, Thompson points out that the district court suggested in its
findings after the evidentiary hearing that his retained counsel may have been paid for using illgotten drug profits (“Thompson has retained counsel in this case. While there is no evidence of
his fee arrangement, it is fair to assume his attorney does not come cheap. In addressing the
argument that Thompson’s lifestyle does not reflect that of a drug dealer making substantial
profits, the Court is not required to ignore this fact.”). Thompson says, however, that the retainer
for his attorney was funded by his spouse and her parents. Second, Thompson contends that
Scalf’s testimony should not have been credited because Scalf had reason to overstate the
amount of drugs: he could seek a reduction in his sentence for his substantial assistance in the
government’s investigation and prosecution.
Neither of these issues, however, undermines the district court’s credibility assessment of
Scalf such that it is left “without foundation.” The district court acknowledged at sentencing that
Thompson had introduced evidence that he had used his relatives’ money, not drug profits, to
pay for his retained counsel, but the court made clear that that had not been the sole basis for its
decision to credit Scalf’s testimony: the court separately reiterated that Thompson’s testimony
about drug quantities “wasn’t convincing to the Court, and his testimony was not logical.” Nor
does Scalf’s plea agreement and eventual lighter sentence based on his cooperation with the
government undermine his credibility. Cf. Jefferson v. United States, 730 F.3d 537, 552 (6th Cir.

-5-

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 6

Nos. 14-5245/5371, United States v. Anderson, et al.
2013). Although Scalf had a plea agreement in place providing that any “self-incriminating
information [he] provided to the government” would “not be used against [Scalf] in the
calculation of his guidelines,” his only relevant conduct under the plea agreement was the sale on
June 20, 2013, and he was held responsible for only the 150 oxycodone pills recovered in that
transaction. The district court, which we have repeatedly said is “in the best position to make . . .
determination[s]” of witness credibility, see, e.g., United States v. Hill, 195 F.3d 258, 264–65
(6th Cir. 1999), noted that overall Thompson had “much more to gain and much less to lose” by
his testimony before the court, and found that Thompson’s testimony “was offered in an attempt
to incorrectly reduce Thompson’s guideline sentencing range.” The district court additionally
noted that Scalf’s testimony did not represent an implausibly large amount of oxycodone
because, even assuming the defense was correct in its unsubstantiated assertion that Scalf’s sales
to Thompson and Osborne rivaled the legal prescription sales of pharmacies in the London area,
Thompson might have been a street-level dealer as well as a middleman distributing to other
dealers. We are left, then, with the fact of Scalf’s favorable plea agreement, which does not by
itself give us a sufficient basis to conclude that the district court’s decision to take Scalf’s word
on drug quantities over Thompson’s was unfounded.
Thompson further argues that the number settled on by the district court—8,750 pills—
was baseless because it was not perfectly consistent with Scalf’s testimony, even though the
court said it was crediting Scalf’s word over Thompson’s. Thompson points out that Scalf
testified to a range of 10,000 to 12,000 pills, not 8,750. But “[w]here the exact amount of drugs
involved is unclear,” the district court is permitted at sentencing to approximate the quantity of
drugs attributable to a defendant, while taking care to “‘err on the side of caution.’” United
States v. Valentine, 694 F.3d 665, 672 (6th Cir. 2012) (quoting United States v. Hernandez,

-6-

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 7

Nos. 14-5245/5371, United States v. Anderson, et al.
227 F.3d 686, 699 (6th Cir. 2000)). See also U.S.S.G. § 2D1.1 cmt. 5 (“Where there is no drug
seizure or the amount seized does not reflect the scale of the offense, the court shall approximate
the quantity of the controlled substance.”). That is precisely what the district court did here. The
district court calculated the total quantity of pills by referring, generally, to the lower end of
Scalf’s estimates of the volume and frequency of his weekly deliveries to Thompson. For
example, the court credited Scalf’s testimony that he delivered approximately 100 pills to
Thompson six times per week until around the time that Thompson began his construction job in
early April 2013—but the court erred on the side of caution by assuming that the 100-pill
deliveries stopped by the end of March 2013. The court also credited Scalf’s estimate of 50 to
75 pills per delivery to Thompson, at a rate of five deliveries per week, from April until they
were arrested in June, but the court again erred on the side of caution by basing its pill quantity
calculation on the low-end assumption of 50 pills per delivery for that period. We are satisfied
that the district court’s approximation of 8,750 oxycodone pills attributable to Thompson is
“‘supported by competent evidence in the record’” and therefore is not clearly erroneous.
Valentine, 694 F.3d at 672–73 (quoting United States v. Mahaffey, 53 F.3d 128, 132 (6th Cir.
1995)).
III.
Next we consider Thompson’s argument that the district court erred by assessing a twolevel enhancement for obstruction of justice, pursuant to § 3C1.1. While we review for clear
error the district court’s factual findings that serve as the basis for its determination that the
defendant obstructed justice, we review de novo the district court’s legal conclusion that those
facts constitute obstruction of justice. United States v. Greco, 734 F.3d 441, 449 (6th Cir. 2013).
The factual finding that served as the basis for the district court’s determination that
Thompson obstructed justice was its finding that Scalf had accurately stated the number of pills
-7-

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 8

Nos. 14-5245/5371, United States v. Anderson, et al.
he had sold to Thompson, while Thompson had lied to the judge and the probation officer by
insisting that he had purchased a far smaller number of pills. As discussed in Part II, supra, this
factual finding was not clearly erroneous.
Furthermore, the district court was correct as a matter of law to conclude that by lying
about the quantity of pills he had purchased, Thompson had obstructed justice within the
meaning of § 3C1.1. Committing perjury or otherwise providing materially false information to
a judge warrants the enhancement for obstruction of justice, as does providing materially false
information to a probation officer during a presentence investigation. U.S.S.G. § 3C1.1 cmt.
4(B), (F), (H). “Perjury occurs when a witness, testifying under oath or affirmation, ‘gives false
testimony concerning a material matter with the willful intent to provide false testimony, rather
than as a result of confusion, mistake, or faulty memory.’” United States v. Lawrence, 308 F.3d
623, 631–32 (6th Cir. 2002) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1992)). “For a
district court to enhance a defendant’s sentence under § 3C1.1, the court must: 1) identify those
particular portions of defendant’s testimony that it considers to be perjurious; and 2) either make
a specific finding for each element of perjury or, at least, make a finding that encompasses all of
the factual predicates for a finding of perjury.” Lawrence, 308 F.3d at 632. The district court
did precisely this at Thompson’s sentencing. The court identified the particular portion of
Thompson’s testimony that was perjurious: the court stated that Thompson, “in attempting to
convince the Court that he was responsible for a lower quantity of drugs, made false statements
to the Court directly related to that issue” during his testimony at an evidentiary hearing.
Furthermore, the court made specific findings for the elements of perjury: the court noted that
Thompson’s false testimony was material, because it “directly related to how this Court would
calculate drug quantities for each of the defendants,” and the court concluded that Thompson had

-8-

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 9

Nos. 14-5245/5371, United States v. Anderson, et al.
given false testimony “knowingly” and “intentionally.” We see no error in the district court’s
finding that Thompson obstructed justice.
IV.
Anderson, too, argues that the district court erred in assessing against him a two-level
enhancement for obstruction of justice under § 3C1.1.

The court imposed the obstruction

enhancement because Anderson told the probation officer that he made only one trip from
Detroit to deliver drugs, while Scalf’s testimony—which the district court credited—was that
Anderson had made at least four drug runs. We note that the district court made findings at
Anderson’s sentencing sufficient to impose the obstruction enhancement. The district court
identified the portion of Anderson’s statement to the probation officer that it found to be false:
Anderson had “insisted that he only made one trip into the district,” contrary to Scalf’s
testimony. The district court further found that Anderson’s statement was material because
“[t]he number of trips would be directly related to the number of pills that Mr. Anderson would
have brought into the district first and foremost, and that would affect his base offense level,”
and because “if his statement was believed, then it also could possibly qualify him for role
reduction.” Additionally, the district court found that Anderson’s statement “was given to a
Court officer intending to influence the decision if believed.”
On appeal, Anderson steers a different tack than Thompson in challenging his obstruction
enhancement. Although Anderson does not concede that he lied about the number of trips that
he made from Detroit, he acknowledges the high bar that he has to overcome to challenge the
district court’s assessment of his and Scalf’s credibility, and thus on appeal he does not raise the
factual argument that he was right and Scalf was wrong about the number of trips. Instead,
Anderson presents two different arguments. First, citing United States v. Williams, 952 F.2d
1504, 1516 (6th Cir. 1991), he says that his statement about the number of trips did not
-9-

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 10

Nos. 14-5245/5371, United States v. Anderson, et al.
significantly impede the sentencing process, since the court did not believe him anyway, and
therefore he cannot be considered to have obstructed justice. Second, citing United States v.
Hamilton, 929 F.2d 1126, 1131 (6th Cir. 1991), he argues that his statement was merely a
permissible factual dispute during sentencing.
But neither argument is persuasive; the cases Anderson cites are inapposite. Although
Williams does state that “[t]he focus of [§ 3C1.1] is on whether defendant, by actively making
material false statements (and not by a passive refusal to cooperate), succeeded in significantly
impeding the investigation,” 952 F.2d at 1516, that passage specifically addressed Application
Note 3(g) of the Guidelines,1 which stated that providing “a materially false statement to a law
enforcement officer that significantly obstructed or impeded the official investigation or
prosecution of the instant offense” warranted the obstruction enhancement. Id.; see also United
States v. Aideyan, 11 F.3d 74, 76 (6th Cir. 1993) (“Williams is inapposite because it concerned
falsehoods told to F.B.I. agents during an investigation.”). By contrast, § 3C1.1 cmt. 4(H),
which states that an obstruction enhancement is appropriate where the defendant has “provid[ed]
materially false information to a probation officer in respect to a pre-sentence or other
investigation for the court,” does not require that the false information impede any investigation.
See Aideyan, 11 F.3d at 76. It is enough that the information be false and that it be material, as
the district court correctly found it to be in this case.
Anderson’s reliance on Hamilton is similarly misplaced. Section 3C1.1 does not prevent
a defendant from “contest[ing] the applicability of specific guideline provisions”: in Hamilton,
for example, the defendant was allowed to argue “that he merely ‘brandished,’ rather than
‘otherwise used,’ a weapon” without facing an obstruction enhancement. Hamilton, 929 F.2d at
1

The identical provision can be found in the current Guidelines Manual at § 3C1.1 cmt.

4(G).
- 10 -

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 11

Nos. 14-5245/5371, United States v. Anderson, et al.
1131. That right, however, “is not so broad as to entitle that defendant to perjure himself.” Id.
The court credited Scalf’s testimony that Anderson had made at least four trips from Detroit—a
finding that Anderson does not contest on appeal—and found that Anderson lied when he told
the probation officer that he had made only one trip. This was materially false information and
the district court did not err in imposing the § 3C1.1 obstruction-of-justice enhancement on
Anderson.
V.
In a separately-filed pro se brief, Anderson also seeks to challenge his sentence under the
Sixth Amendment cases Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States, 133 S.Ct. 2151 (2013). Anderson is ably represented by counsel, who had already filed a
brief in his appeal, and criminal defendants do not have a constitutional right to “hybrid
representation,” United States v. Mosely, 810 F.2d 93, 98 (6th Cir. 1987), so we are under no
obligation to address Anderson’s pro se supplemental brief. United States v. Williams, 641 F.3d
758, 770 (6th Cir. 2011). Nevertheless, we will exercise our discretion to do so, to make clear
that Anderson’s arguments are without merit. Apprendi held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
Extending Apprendi, Alleyne held that “[a]ny fact that, by law, increases the penalty for a
crime”—including a fact that increases the applicable mandatory minimum sentence—“is an
‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” 133 S.Ct. at
2156. Anderson contends that the court in his case “could not have imposed the sentence it did,
without making the factual finding” from the bench that he had transported oxycodone on at least
four occasions, not merely the one occasion that he admitted in his guilty plea; therefore,
Anderson argues, Apprendi and Alleyne were violated.
- 11 -

This argument misses the mark.

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 12

Nos. 14-5245/5371, United States v. Anderson, et al.
“Alleyne did not extend Apprendi to facts that do not increase the prescribed statutory penalties.”
United States v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013). “[J]udge-found facts that trigger an
increased guidelines range” remain constitutionally permissible. United States v. Cooper, 739
F.3d 873, 884 (6th Cir. 2014). Here, the district court’s judicial factfinding of the quantity of
oxycodone attributable to Anderson did affect his sentencing guideline range, but it did not affect
the statutory mandatory minimum penalty (none) or the statutory maximum penalty (twenty
years). See 21 U.S.C. § 841(b)(1)(C) (setting out penalties for Schedule I and II controlled
substances); 21 C.F.R. § 1308.12 (identifying oxycodone as a Schedule II controlled substance).
Thus Apprendi and Alleyne were not violated.
VI.
We return to Thompson, whose final contention is that the district court should have
granted him an offense-level reduction for acceptance of responsibility, pursuant to U.S.S.G.
§ 3E1.1. We review for clear error the district court’s decision to deny Thompson credit for
acceptance of responsibility.2 United States v. Denson, 728 F.3d 603, 614 (6th Cir. 2013). See
also U.S.S.G. § 3E1.1 cmt. 5 (“The sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility. For this reason, the determination of the sentencing
judge is entitled to great deference on review.”). Under § 3E1.1(a), the defendant must “clearly
demonstrate[] acceptance of responsibility for his offense” in order to qualify for the offenselevel reduction. “[A] defendant who falsely denies . . . relevant conduct that the court determines
to be true has acted in a manner inconsistent with acceptance of responsibility.” U.S.S.G.
§ 3E1.1 cmt. 1(A). This court has upheld a district court’s refusal to give the defendant credit for
2

In situations where “‘the only issue presented is the propriety of applying the reduction
to the uncontested facts,’” however, “‘the decision is reviewed de novo.’” Denson, 728 F.3d at
614 (quoting United States v. Coss, 677 F.3d 278, 290 (6th Cir. 2012)). Here, the facts are not
uncontested; indeed, the gravamen of Thompson’s argument is that he, not Scalf, stated the
correct number of oxycodone pills.
- 12 -

Case: 14-5245

Document: 30-2

Filed: 02/19/2015

Page: 13

Nos. 14-5245/5371, United States v. Anderson, et al.
acceptance of responsibility, even though the defendant pled guilty, where the defendant
“denied . . . the amount of controlled substances for which he was accountable and the scope of
his involvement in the criminal enterprise.” United States v. Dempsey, 26 F. App’x 464, 468
(6th Cir. 2001) (citing Mahaffey, 53 F.3d at 134–35). As discussed above, the district court
found that Thompson was responsible for at least 8,750 pills, and this finding was not clearly
erroneous. Thompson denied that quantity and insisted that he was responsible for a much lower
quantity, on the order of fewer than 1,000 pills; the district court therefore did not clearly err in
denying him credit for acceptance of responsibility.
VII.
For the above reasons Anderson’s sentence and Thompson’s sentence are both affirmed.

- 13 -