USA v. Leonardo William

Filing

OPINION filed : we AFFIRM the district court's judgment in full, decision not for publication. Alan E. Norris, Circuit Judge; Eric L. Clay, Circuit Judge Authoring and Deborah L. Cook, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0075n.06
No. 15-5080
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
Feb 04, 2016
DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

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

LEONARDO WILLIAMS,
Defendant-Appellant.

______________________________/

BEFORE:

NORRIS, CLAY, and COOK, Circuit Judges.

CLAY, Circuit Judge.

Defendant Leonardo Williams appeals his conviction and

sentence for two counts of possession of cocaine with intent to distribute in violation of 21
U.S.C. § 841. After a three-day trial, the jury found Defendant guilty of the aforementioned
offenses. The district court thereafter determined that Defendant qualified as a “career offender”
under U.S.S.G. § 4B1.1 and sentenced him to a below-Guidelines term of 217 months’
imprisonment. On appeal, Defendant challenges (1) the district court’s denial of his motion to
suppress allegedly mishandled evidence, (2) the sufficiency of the evidence supporting his
convictions, and (3) the procedural reasonableness of his sentence. For the reasons set forth
below, we AFFIRM the district court’s judgment in full.
BACKGROUND
Sometime in 2012, informant Darise Burroughs approached Special Agent Mark Chism
of the West Tennessee Violent Crime and Drug Task Force. Burroughs asserted that he had

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recently visited Defendant’s residence and had seen Defendant sell cocaine. Burroughs also
stated that he had seen an assault rifle in Defendant’s residence. Based on Burroughs’ tip, Agent
Chism arranged for Burroughs to conduct two controlled buys with Defendant: the first on
September 13, 2012; the second on September 18, 2012.
The controlled buys were nearly identical. Agent Chism would have Burroughs place a
recorded call to Defendant to arrange a purchase of cocaine. Agent Chism would then provide
Burroughs with buy money, which had been photocopied so it could later be identified as the
money used in the transaction. Burroughs was also wired with a device that both recorded the
transaction and allowed Agent Chism to monitor what was being said in real time. Agent Chism
would then search both Burroughs and his vehicle before sending him to Defendant’s residence
to make the purchase. Chism would follow Burroughs to the residence and listen through the
wire while Burroughs entered the residence and conducted the transaction.
Testimony from both Burroughs and Chism, as well as the recordings from the
encounters, indicated that the controlled purchases went according to plan. During the first buy,
Defendant sold an “eight ball”—roughly three grams—of cocaine to Burroughs for $225.
During the second buy, Defendant sold Burroughs 1.5 grams of cocaine for $95. Burroughs
testified that during one of the controlled buys, it appeared that Defendant had retrieved the
purchased quantity of cocaine from a larger bag behind a movable kitchen cabinet. Defendant
then weighed out the cocaine on digital scales and packaged it in an individual plastic baggie.
On September 20, 2012, Agent Chism obtained and executed a search warrant for
Defendant’s residence. A canine was brought in to assist in the search. Once inside Defendant’s
residence, the canine alerted to, inter alia, a small moveable cabinet in the kitchen. After the
canine search, Agent Chism assigned other agents to search specific rooms, to catalogue

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evidence, and to take pictures of any evidence located. Chism assigned Special Agent Ciesliga
to act as evidence custodian; it was Ciesliga’s job to inventory any evidence recovered.
Investigators recovered and inventoried the following evidence from Defendant’s home:
(1) a white plastic shopping bag containing another bag of white powdery substance, found
behind the movable kitchen cabinet; (2) several baggies located throughout the residence
containing either cocaine or a cocaine/MDMA mixture; (3) three digital scales found in a kitchen
drawer; (4) a handgun found underneath a chest of drawers in Defendant’s bedroom; and (5) a
total of $727 in cash found in the bedroom. Neither the photocopied money used during the
controlled purchases nor the assault rifle reported by Burroughs was found during the search.
Agent Ciesliga took the evidence found at Defendant’s residence to the Drug Task Force
Office for overnight storage, and he transported the evidence to the Memphis Police Department
(“MPD”) Evidence Room the following day. At some point prior to trial, Agent Chism took the
evidence to the Tennessee Bureau of Investigation (“TBI”) laboratory for analysis. Once there,
forensic scientist Brock Sain tested the substances found in Defendant’s residence. According to
Sain, the bag taken from behind the movable kitchen cabinet tested negative for controlled
substances.

However, the other substances found in Defendant’s residence tested positive.

Sain’s tests revealed that a total of 19.62 grams of cocaine, 2.61 grams of MDMA, and
0.96 grams of a cocaine/MDMA mixture were recovered from Defendant’s residence. After
testing was complete, the evidence was taken back to the MPD Evidence Room for storage.
In October 2013, Agent Chism learned that the bag of powdery substance found behind
the cabinet in Defendant’s kitchen tested negative for cocaine. Chism was taken aback, because
he remembered that the substance in the bag had looked and smelled like cocaine, and that the
canine had alerted to it during the search of Defendant’s residence. Chism called TBI to verify

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the report he had received. He then called a Major Borgers at the MPD Evidence Room and
requested a visit to see the evidence again for himself. Agents Chism and Ciesliga traveled to
the Evidence Room and met with Borgers and one of Borgers’ supervisors. Together, the four of
them broke the seal on the evidence envelope containing the substance found behind the cabinet.
Borgers then conducted a “Scott Reagent Field Test” on the substance, which came back
negative for the presence of cocaine.
Agent Chism later testified that no paperwork or report was generated by the MPD
Evidence Room regarding this visit. Chism asserted that this was probably because paperwork is
typically generated only when evidence is removed from the MPD Evidence Room, and thus no
report was generated because the bag of substance was never removed from the room. Agent
Ciesliga likewise testified that he was unaware of any reports regarding the visit and testing that
day.
The government first indicted Defendant on March 28, 2013. After a series of revisions
to the indictment, the government filed a final, five-count indictment against Defendant on
December 12, 2013. Counts One and Two alleged that on September 13 and September 18,
2012 (the dates of the controlled purchases), Defendant possessed with intent to distribute, and
did distribute, cocaine in violation of 21 US.C. § 841(a)(1). Counts Three, Four, and Five
alleged crimes committed on September 20, 2012 (the day Defendant’s residence was searched).
Count Three charged Defendant with being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g). Count Four charged defendant with possession, with intent to distribute,
19 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). Count Five charged defendant with
possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c).

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On August 29, 2013, Defendant filed a Motion to Suppress the Evidence recovered
during the search of his home; the motion was referred to a magistrate judge. Two hearings were
held on Defendant’s motion, at which the parties discussed and presented evidence on, inter alia,
Agent Chism’s October 2013 visit to the MPD Evidence Room and Defendant’s related
allegation that evidence had been mishandled. On May 19, 2014, the magistrate judge issued a
Report and Recommendation denying Defendant’s motion to suppress. On July 1, 2014, the
district court filed an order adopting in part and rejecting in part the magistrate’s Report and
Recommendation. The court agreed with the magistrate’s assessments that: (1) Agent Chism
provided a credible explanation for his October 2013 visit to the MPD Evidence Room, and
(2) any inconsistencies in the testimony of Agents Chism and Ciesliga did not render their
testimony—or the physical evidence—so unreliable as to warrant exclusion of the allegedly
mishandled evidence. Finally, though the district court agreed with the Defendant regarding two
factual inaccuracies contained in the Report and Recommendation, the court concluded that
those inaccuracies did not bear on the correctness of the Report’s ultimate disposition.
After a three day trial, a jury found Defendant guilty on counts One and Two—the counts
stemming from the controlled purchases. The jury hung on Counts Three, Four, and Five, which
all related to the evidence obtained from Defendant’s home during execution of the search
warrant. The district court thereafter granted the government’s motion to dismiss the three
counts on which the jury could not reach a decision.
A Presentence Investigation Report (“PSR”) was prepared for use at sentencing.
The PSR found that Defendant qualified as a career offender under section 4B1.1 of the
Sentencing Guidelines because he had two prior felony convictions: the first for attempted first
degree murder; the second for possession with intent to sell cocaine.

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Application of the

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enhancement placed Defendant’s criminal history category at VI and his offense level at 34. See
U.S.S.G. § 4B1.1. Defendant’s Guidelines-recommended sentencing range was therefore set at
262 to 327 months’ imprisonment.
On December 5, 2014, the district court held its first sentencing hearing.

After

considering the parties’ arguments, the court determined that the career offender enhancement
applied to Defendant.

The court opined, however, that it was appropriate to consider the

disparity between Defendant’s sentence with and without the career offender enhancement. The
parties and the court therefore discussed what Defendant’s sentence would have been without
application of the career offender enhancement.

At the request of the government, the

sentencing hearing was continued to allow the parties to marshal additional proof on that issue.
On January 9, 2015, the district court held a second sentencing hearing. At that hearing,
the government proffered much of the same evidence presented at trial. Based on this evidence,
the court concluded Defendant’s without-enhancement offense level would have been 22, with a
criminal history category of V; the sentencing range would have been 77 to 96 months. Notably,
this without-enhancement calculation did not take into account the November 1, 2014 changes to
the Sentencing Guidelines. Under those changes, Defendant’s offense level would have been
two levels lower.
After further argument as to why the court should or should not depart from the withenhancement Guidelines range of 22 to 27 years, the court sentenced Defendant to a belowGuidelines term of 18 years’ imprisonment on both counts of conviction, to run concurrently.
Defendant timely appealed.

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DISCUSSION
I.

DEFENDANT’S
EVIDENCE

MOTION

TO

SUPPRESS

ALLEGEDLY MISHANDLED

Standard of Review
In considering the denial of a motion to suppress evidence, we review a district court’s
findings of fact for clear error and legal conclusions de novo. United States v. Smith, 594 F.3d
530, 535 (6th Cir. 2010). “Where a district court denies a motion to suppress, this court
considers the evidence in the light most favorable to the government.”

United States v.

Hinojosa, 606 F.3d 875, 880 (6th Cir. 2010) (internal brackets and quotation marks omitted)
(quoting United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc)). Furthermore,
because chain of custody issues ultimately concern the admissibility of evidence, see United
States v. Allen, 619 F.3d 518, 525 (6th Cir. 2010), the district court’s decision to admit any
challenged evidence is reviewed for abuse of discretion. See United States v. Allen, 106 F.3d
695, 700 (6th Cir. 1997); see also Cummins v. BIC USA, Inc., 727 F.3d 506, 510 (6th Cir. 2013)
(“The district court has broad discretion to determine questions of admissibility . . . .”).
Analysis
Problems with the chain of custody of evidence typically go to the weight of that
evidence rather than its admissibility. Allen, 619 F.3d at 525. Thus, we have held that physical
evidence is admissible so long as “the possibilities of misidentification or alteration are
‘eliminated, not absolutely, but as a matter of reasonable probability.’” Allen, 106 F.3d at 700
(quoting United States v. McFadden, 458 F.2d 440, 441 (6th Cir. 1972)). In other words,
“[m]erely raising the possibility of tampering or misidentification is insufficient to render
evidence inadmissible.” United States v. Combs, 369 F.3d 925, 938 (6th Cir. 2004).

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For example, in Allen, 619 F.3d 518, the defendant argued that a bag of cocaine found
during his arrest was improperly admitted into evidence because the original evidence bag into
which the drugs were placed was destroyed and replaced with a different evidence bag, and
because the reported weight of the seized drugs diminished over time. 619 F.3d at 525. We
concluded that “it does not appear that there was anything improper about . . . replacement of the
original evidence bag, and [one investigator] provided several explanations for the decrease in
weight. At most, [defendant’s] arguments merely raise the possibility of tampering.” Id. We
therefore held that the district court did not abuse its discretion by admitting the challenged
evidence. Id.; see also United States v. Lewis, 363 F. App’x 382, 390 (6th Cir. 2010) (affirming
admission of allegedly mishandled evidence where “[t]he undisputed evidence presented at trial
indicates that the officers carefully documented each step between recovery of the [evidence]
and its placement into the evidence vault”).
Defendant argues that Agent Chism’s October, 2013 visit to the MPD Evidence Room to
re-test the substance found behind the kitchen cabinet does not merely “raise the possibility that
someone tampered with the evidence,” but in fact shows “that someone actually had.” (Def.’s
Br. at 35–36 (emphasis omitted).) And though Defendant concedes that he “was not ultimately
charged with the evidence in question,” he nonetheless asserts that “[t]he fact that . . . the
evidence was tampered with called the remainder of the investigation and the chain of custody
methods into question.” (Id. at 36.)
We disagree. Although the procedures employed during Chism’s follow-up visit to the
Evidence Room need not necessarily be condoned, labeling what occurred during that visit as
“evidence tampering” requires a particularly uncharitable take on the facts. Viewing the facts in
the light most favorable to the government, as we must do on review of a denied motion to

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suppress, Hinojosa, 606 F.3d at 880, Chism was merely attempting to assuage his disbelief in the
results of the TBI Lab test, and he did so in such a way as to reduce the appearance or possibility
of tampering.
At the first suppression hearing, for example, Chism testified that upon learning the
results of TBI’s test on the substance found behind the kitchen cabinet, “[he] was surprised
because it smelled like cocaine, the dog had alerted on it, and [he] actually thought that there
may have been a mistake made.” (R. 71, PageID 174.) Chism averred that this was his sole
motive for his October 2013 visit to the Evidence Room, and he reaffirmed this motive at the
second suppression hearing. Defendant asks us to disregard Chism’s asserted motive because the
circumstances of the visit suggest that his motives were more nefarious. Yet, when viewed in the
light most favorable to the government, the facts are more supportive of the opposite inference:
Chism freely admitted to visiting the Evidence Room and to requesting the presumptive test.
Indeed, Chism testified that the presumptive test results came back negative, thereby verifying
the TBI Lab’s results—a fact beneficial to Defendant.
Furthermore, at both suppression hearings, Chism testified as to the precautionary
measures taken during his October 2013 visit to the Evidence Room. Chism did not visit the
Evidence Room by himself; rather, he asked that Agent Ciesliga, Major Borgers, and another
Evidence Room technician be present. Nor did Chism handle the bag of substance himself:
together, the officers watched as Borgers performed the presumptive test. Chism later testified,
“I didn’t touch [the evidence] that day. I didn’t handle it in any way. I just saw it.” (R. 72,
PageID 223.) And though Agent Ciesliga could not remember whether Chism himself handled
any evidence that day, Ciesliga’s testimony likewise indicated that no evidence was tampered
with.

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Both the magistrate and the district court found the agents’ testimony credible, despite
any perceived inconsistencies. On review of the record, we find no reason to believe that these
credibility determinations were clearly erroneous. See United States v. Wright, 747 F.3d 399,
407–08 (6th Cir. 2014) (“A factual finding is clearly erroneous when, 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.”). To the extent any inconsistencies in the agents’
testimony called their credibility into question, the district court did not abuse its discretion by
leaving such questions to the jury. See Allen, 619 F.3d at 525.
In sum, we find unavailing Defendant’s assertion that evidence was “tampered with”
during the October, 2013 visit: conducting a presumptive test in an evidence room and in the
presence of three witnesses does not easily fit the mold of “tampering”—especially when those
involved in the alleged tampering freely admit that their test confirmed lab test results favorable
to Defendant. As in Allen, we find that “[a]t most, [defendant’s] arguments merely raise the
possibility of tampering.” Id. Such a possibility, however, “is insufficient to render evidence
inadmissible.” Combs, 369 F.3d at 938.
Because we conclude that evidence was not “tampered with” during Chism’s October
2013 visit to the Evidence Room, we disagree with Defendant’s contention that the visit
necessarily calls into question the legitimacy of all the evidence in this case. We note, however,
that a panel of this Court rejected a similar argument in United States v. Logan, 372 F. App’x
601 (6th Cir. 2010). In Logan, the defendant introduced evidence at trial suggesting that an
evidence room technician kept the evidence room in a state of “disarray,” mishandled cash
evidence, and was the subject of an ongoing investigation for selling evidence guns. Id. at 605.
The defendant argued “that because [the technician] mishandled the funds and was under

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investigation for selling evidence guns for money, he necessarily tampered with the gun and drug
evidence” from the defendant’s case. Id. at 607. In response, we observed that
[w]e have never held that evidence of the mishandling of one piece of evidence
requires that separate pieces of evidence in the same case be necessarily excluded.
The question is, instead, whether the government can meet its burden to prove
chain of custody with respect to each piece of evidence.
Id.
The facts of this case are far less supportive of an inference of ubiquitous mishandling
than the facts of Logan. There is no suggestion in this case that the MPD evidence room was in
a general state of disarray; and to the extent Chism “mishandled” evidence, his motivations for
doing so were benign. As we stated above, Defendant’s cited facts suggest, at most, a mere
possibility tampering. But to deny the government the opportunity to “prove chain of custody
with respect to each piece of evidence” at trial, id., and to take questions of weight and
credibility out of the hands of the jury entirely, Defendant must show more than a mere
possibility of tampering. Combs, 369 F.3d at 938. We therefore conclude that the district court
did not err in denying Defendant’s motion to suppress, and that it did not abuse its discretion by
admitting the challenged evidence.
II.

SUFFICIENCY
CONVICTIONS

OF

THE

EVIDENCE

SUPPORTING

DEFENDANT’S

Preservation and Standard of Review
To properly preserve a challenge to the sufficiency of the evidence supporting her
conviction, a defendant must file a motion for judgment of acquittal under Federal Rule of
Criminal Procedure 29. United States v. Frazier, 595 F.3d 304, 306 (6th Cir. 2010). Here,
Defendant failed to move for judgment of acquittal before the district court. In such cases, this
Court reviews the sufficiency of the evidence only for plain error resulting in a “manifest
miscarriage of justice.” United States v. Tragas, 727 F.3d 610, 617–18 (6th Cir. 2013) (citing
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Frazier, 595 F.3d at 306). “A miscarriage of justice exists only if the record is devoid of
evidence pointing to guilt.” Id. (quoting United States v. Roberge, 565 F.3d 1005, 1008 (6th Cir.
2009)).
Analysis
Defendant challenges the sufficiency of evidence supporting his convictions on Counts
One and Two, both of which stem from his sale of cocaine to informant Darise Burroughs during
the controlled buys on September 13 and September 18, 2012. We agree with the district court
that the evidence of guilt on these counts was “overwhelming.”

(R. 153, PageID 1504.)

Evidence presented at trial established that on two separate occasions, Burroughs placed
recorded calls to Defendant to arrange a sale of cocaine; Burroughs was equipped with a
recording device; he was searched; he was followed to Defendant’s residence; and once he
arrived at Defendant’s residence, he purchased the pre-arranged quantity of cocaine. On both
occasions, Burroughs observed Defendant weigh the cocaine before packaging it in an individual
plastic baggie. Chism and Burroughs’ accounts of the controlled buys were corroborated by
digital audio recordings taken by a recording device worn by Burroughs; the recordings were
played at trial. The substances recovered from these purchases tested positive for cocaine.
In view of these facts, we cannot say that the record is “devoid of evidence pointing to
guilt” on the two counts for which Defendant was convicted. Tragas, 727 F.3d at 617. Indeed,
given the evidence against him, Defendant’s sufficiency of the evidence challenge would fail
even under the applicable standard of review had Defendant filed a Rule 29 motion. Under that
standard, the Court is “limited to ascertaining whether, viewing the evidence in the light most
favorable to the government, . . . ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” United States v. Carmichael, 232 F.3d 510,

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519 (6th Cir. 2000) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We have no doubt
that when viewed in the light most favorable to the government, the testimony, audio recordings,
and physical evidence relating the controlled buys could lead a “rational trier of fact [to find] the
essential elements of the crime beyond a reasonable doubt.” Id.
III.

PROCEDURAL
SENTENCE

REASONABLENESS

OF

THE

DISTRICT

COURT’S

Standard of Review
This Court “review[s] a sentence imposed by the district court for procedural and
substantive reasonableness under an abuse-of-discretion standard.” United States v. Brown, 372
F. App’x 643, 645 (6th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 52 (2007)).
Objections not properly raised during sentencing are considered forfeited and therefore are
reviewed only for plain error. United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004).
Preservation of the Issue
At sentencing, Defendant argued that calculation of his base offense level should not
include the criminal acts alleged in Counts Three, Four, and Five of his indictment, on which the
jury could not reach a verdict, because “a jury was not convinced that Mr. Williams” committed
those crimes. (R. 128, PageID 510–11.) Defendant also argued that the district court should
consider the disparity between Defendant’s possible sentence with and without the career
offender enhancement when making its sentencing decision. The parties and the court discussed
these objections at length, and the objections were therefore properly preserved for review.
Cf. Bostic, 371 F.3d at 871 (holding preservation of objection at sentencing requires defendant to
“object with that reasonable degree of specificity which would have adequately apprised the trial
court of the true basis for his objection” (internal quotation marks omitted)).

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Defendant concedes, however, that although addressed in the Addendum to Defendant’s
PSR, no objection regarding the applicability of the November 1, 2014 Amendment to the
Guidelines was properly raised before the district court. Thus, the issue of the effect of the
revised Guidelines on Defendant’s without-enhancement sentence was not properly preserved.
Analysis
When reviewing a sentence for procedural reasonableness, we examine whether the
district court committed a significant procedural error, including “failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence—including an explanation for any deviation
from the Guidelines range.” Gall, 552 U.S. at 51; see also Brown, 372 F. App’x at 645. Thus,
“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) (citing United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006)).
In sum, “[t]he district court must provide an articulation of the reasons [it] reached the sentence
ultimately imposed,” that “allow[s] for meaningful appellate review.” United States v. SolanoRosales, 781 F.3d 345, 351 (6th Cir. 2015) (citations and internal quotation marks omitted).
Defendant argues that “[t]he district court used a drug quantity that was not proven to the
jury beyond a reasonable doubt” to calculate Defendant’s without-enhancement sentence.
(Def.’s Br. at 52.) Defendant also notes that during the sentencing hearing, the parties and the
court “lost sight of the fact that as of November 1, 2014, the Guidelines manual reduced the base
offense levels in the Drug Quantity Table at USSG § 2D1.1(c) by two levels.” (Id. at 30 n.5, 53–

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54.) At first blush, these arguments appear to allege that the district court’s sentence was
procedurally unreasonable because it “fail[ed] to calculate (or improperly calculate[ed]) the
Guidelines range.” Gall, 552 U.S. at 51. However, Defendant concedes that these alleged errors
ultimately had no effect on the court’s calculation of his Guidelines range because he received
the career offender enhancement. See U.S.S.G. § 4B1.1 (providing that the career offender base
offense level applies where it is greater than the applicable base offense level under § 2D1.1).
Defendant does not challenge application of that enhancement on appeal.
Defendant instead argues that because the district court considered the disparity between
the Guidelines’ recommended sentence with and without the career offender enhancement, if the
district court had properly calculated his without-enhancement sentence, the disparity would
have been larger, thus leading the district court to grant an even larger downward variance.
These arguments are more appropriately analyzed as the “select[ion] [of] a sentence based on
clearly erroneous facts,” Gall, 552 U.S. at 51, namely, an erroneously calculated withoutenhancement sentence. We therefore analyze the arguments under the framework developed for
assessing potential procedural error.
Defendant’s first argument—that “[t]he district court used a drug quantity that was not
proven to the jury beyond a reasonable doubt” to calculate the without-enhancement sentence
(Def.’s Br. at 52)—is unavailing. Defendant concedes that “[t]his Circuit follows the rule that a
defendant’s conduct, though not proven at trial, can still be used as relevant conduct to determine
an appropriate sentence.” (Def.’s Br. at 52 (citing United States v. Jones, 641 F.3d 706, 713 (6th
Cir. 2011)).) This is so, moreover, “so long as that conduct has been proved by a preponderance
of the evidence.” Jones, 641 F.3d at 712. In the instant case, the district court relied on the
record developed at trial to determine that a preponderance of the evidence supported the drug

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quantity calculations contained in the PSR. On review of the record, we agree that the district
court’s drug quantity calculations were supported by a preponderance of the evidence, id., and
that these calculations therefore do not constitute “clearly erroneous” facts upon which
Defendant’s final sentence was based. See Gall, 552 U.S. at 51.
Defendant’s second argument—that the district court failed to account for a change in
Guidelines—is more persuasive. The November 1, 2014 Guidelines Amendment reduced the
base offense level for Defendant’s without-enhancement sentence by two levels, from 20 to 18.
See U.S.S.G. § 2D1.1(c).

Thus, when properly calculated, Defendant’s final without-

enhancement offense level was 20 rather than 22.1 United States v. Welch, 689 F.3d 529, 532–33
(6th Cir. 2012) (“A district court generally applies the version of the Sentencing Guidelines in
place at the time of sentencing unless applying the current version would amount to a violation
of the Ex Post Facto Clause.”). This error was “clear” not only because district courts are
required to apply the version of the Guidelines Manual in effect at the time of sentencing, see
U.S.S.G. § 1B1.11(a) & (b), but also because the first addendum to Defendant’s PSR noted the
November 1, 2014 change.
Moreover, the record indicates that the district court did, to some extent, “select[] [its]
sentence based on” this clearly erroneous fact. Gall, 552 U.S. at 51. The court continued the
first sentencing hearing so the government could prepare arguments and evidence regarding
Defendant’s without-enhancement sentence. And in its sentencing colloquy at Defendant’s
second sentencing hearing, the court stated:
[Court]: The defense position was initially that we had a really, really low range if
you didn’t look at the career offender status. And therefore, we’re looking at a 12
and a 5, Category 5, and that just created that type of disproportionality that
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The district court applied a two-level enhancement for possession of a dangerous
weapon in connection with the charged offenses.
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would cause great concern in the sentencing process and that we need to be
concerned with that.
So we went back and recalculated. I think it was the proper thing to do, and we
ended up with a 22 and a 77 to 96 month range. And it at least gives you a better
perspective on where we are; that while it’s not the range, it’s the what we call an
alternative range, the range that would exist for a non-career offender.
(R. 153, PageID 1545.)
However, because Defendant never raised this issue before the district court, the error is
subject to “plain error” review. See United States v. Wilson, 614 F.3d 219, 223 (6th Cir. 2010)
(“Because [defendant] failed to raise her procedural claim before the district court, we must
evaluate it under a standard of plain error.”); United States v. Abboud, 441 F. App’x 331, 334
(6th Cir. 2011) (holding defendant’s “failure to raise the issue of the applicability of the [correct]
manual at any . . . sentencing hearings . . . constitutes a forfeiture of the claim that he was
erroneously sentenced, which cannot now be considered without a showing of plain error”).
On plain error review, a district court’s consideration of a clearly erroneous fact is not
enough, on its own, to warrant resentencing. Rather, the defendant must also show, inter alia,
that the error “affected [his] substantial rights.” United States v. Vonner, 516 F.3d 382, 386 (6th
Cir. 2008) (en banc). “A sentencing error affects a defendant’s substantial rights when there is a
reasonable probability that, but for the error, she would have received a more favorable
sentence.” Wilson, 614 F.3d at 223–24 (citing United States v. Baker, 559 F.3d 443, 454 (6th
Cir. 2009)). In Wilson, for example, we held that a district court’s consideration of a clearly
erroneous fact affected the defendant’s substantial rights where the district court opined that the
erroneous fact constituted “serious circumstances” and “explicitly acknowledged that these
serious circumstances provided a basis for a lengthy sentence.” Id. at 225.
We conclude that the record in this case does not establish “a reasonable probability that,
but for the error, [Defendant] would have received a more favorable sentence.” Wilson, 614 F.3d
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at 223 (emphasis added). Although the district court found calculation of Defendant’s withoutenhancement sentence important enough to warrant a second sentencing hearing, the record
indicates that the calculation ultimately played little part in the court’s grant of a downward
variance. The only explicitly acknowledged bases for granting that variance were the reports of
Defendant’s exemplary behavior while incarcerated during proceedings in this case. The district
court’s lengthy and laudatory discussion of those reports—and their bearing on the court’s
decision to grant a downward variance—stands in stark contrast to the court’s statement that the
without-enhancement sentence calculation “gives you a better perspective on where we are . . . .”
(R. 153, PageID 1545.) Thus, unlike Wilson, the district court did not “explicitly acknowledge[]
that [the Defendant’s without-enhancement sentence] provided a basis” for the downward
variance in his sentence. Wilson, 614 F.3d at 225 (emphasis added).
Moreover, the above-quoted discussion of the without-enhancement sentence in the
district court’s sentencing colloquy was cabined to a brief summary of the parties’ arguments. In
contrast to that brief summary, the court discussed at length the policies behind applying a
sentence closer to the with-enhancement Guidelines range: the need for adequate deterrence; the
need to protect the public from persons who have “made a decision to make it a career to be a
violator of the law” (R. 153, PageID 1547–48); the fact that, as evidenced by the long sentences
recommended for career offenders, “Congress takes this very seriously” (id. at 1550); and that
giving adequate weight to the Guidelines’ recommended sentence helps to “take[] the
subjectivity out of the analysis” (id.) and works to “avoid [an] unwarranted sense of disparity”
between sentences given to different defendants across different geographical areas. (Id. at
1552.) That Defendant’s sentence of 216 months was far closer to the 262 to 327 month with-

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enhancement sentence than to the 77 to 96 month without-enhancement calculation suggests that
the above-cited policies ultimately outweighed any mitigating factors.
For these reasons, we cannot conclude that there is “a reasonable probability that, but for
the error, [Defendant] would have received a more favorable sentence.” Wilson, 614 F.3d at 223
(emphasis added).

Thus, the district court’s failure to consider the November 1, 2014

Amendment to the Guidelines when calculating Defendant’s without-enhancement sentence did
not constitute “plain error.”
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment in full.

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