United States v. Rayshawn Ligon ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0291n.06
Case No. 20-3305
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jun 17, 2021
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
)
Plaintiff-Appellee,
) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v.
) THE NORTHERN DISTRICT OF
) OHIO
RAYSHAWN D. LIGON,
)
)
Defendant-Appellant.
)
BEFORE: GIBBONS, COOK, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Rayshawn D. Ligon was convicted of
several drug crimes and escape from custody. Ligon now raises various challenges related to the
pretrial, trial, and sentencing phases of his case. For the reasons stated below, we AFFIRM Ligon’s
convictions and sentence.
I.
On February 21, 2019, Myrick Dennis, a United States postal inspector, examined a parcel
sent by Priority Mail that was addressed to Delano Express Logistics (“Delano”),1 7308 Bessemer
Avenue, Cleveland, Ohio and had a return address of “John Miller,” 1534 Rouse Avenue, Modesto,
California. Dennis, who had experience investigating drug trafficking,2 suspected that the parcel
contained narcotics based on the class of mail selected, as well as the parcel’s origin, destination,
1
Ligon was employed by Delano from December 2018 through February 2019.
2
Dennis had been employed by the United States Postal Inspection Service for four years at the time and was
assigned to the Prohibited Mail Narcotics team.
Case No. 20-3305, United States v. Rayshawn Ligon
and size.3 The next day, the parcel was placed in a lineup. Cuyahoga County narcotics detection
canine, “Ciga,” thereafter alerted Michael Twombly, the detective overseeing the inspection, that
there was contraband in the suspect parcel.4 Dennis subsequently obtained a search warrant, and
discovered that the parcel contained 332.18 grams of blue fentanyl pills that were marked as
oxycodone.
On February 27, 2019, Dennis inspected another suspicious parcel. This parcel was
addressed to “Betty Michaels,” 987 East 78 Street, Cleveland, Ohio, had a return address of “Mike
Johnson,” 813 Van Norstrand Court, Modesto, California, and was similarly sent by Priority Mail.
The second parcel was placed in a lineup on February 28, 2019, and Ciga indicated to Twombly
that this package also contained narcotics. Dennis secured a search warrant for the second parcel,
and upon inspection, found 331.10 grams of blue fentanyl pills that were marked as oxycodone.
In an effort to identify the intended recipient of the fentanyl pills, on March 1, 2019, Dennis
and several other United States postal inspectors initiated a controlled delivery operation using the
second parcel. The postal inspectors modified the contents of the package by removing the pills
and replacing them with candy that was roughly the same size and shape as the fentanyl pills. They
also inserted a transmitter into the parcel that alerted them when the parcel was opened. Once the
parcel was altered and resealed, one of the postal inspectors delivered it to the intended delivery
address.
Approximately thirty minutes after the parcel was delivered, the postal inspectors observed
a black Jeep Wrangler arrive at 987 East 78 Street. The postal inspectors watched Ligon exit the
3
According to Dennis, individuals engaging in drug trafficking commonly ship parcels using Priority Mail
because the Priority Mail system allows for traceability, reliability, and timely delivery.
4
Twombly and Ciga worked together since 2013, and were both certified in October 2018 by the Ohio Peace
Officers Training Academy and the North American Police Working Dog Association. They both also completed 80
hours of a state-certified training program at Shallow Creek Kennels in Sharpsville, Pennsylvania.
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Jeep, enter the residence, exit with the parcel, return to his vehicle, and eventually drive to the
residence of Latoya Taylor on East 246 Street in Euclid, Ohio. Several minutes after Ligon arrived
at Taylor’s home, the transmitter notified the postal inspectors that the parcel had been opened.
Soon after the package was opened, Ligon ran out of the house with the parcel and re-entered his
vehicle. Postal inspector, Bryon Green, proceeded to turn on his police lights and attempted to
conduct a felony vehicle stop. In response, Ligon sped off and threw the parcel out of his car
window. He then engaged in a high-speed chase with the postal inspectors, crashed his car, and
fled on foot. The postal inspectors were able to recover the parcel and several of Ligon’s items
found in the vehicle, including his cell phone, jacket, wallet, driver’s license, birth certificate,
Express Wireless receipt, and the business card for his halfway house case worker.
Ligon was finally apprehended over a month later in Wheeling, West Virginia. On April
11, 2019, a West Virginia police officer, Ryan Moore, responded to a call regarding potential drug
activity, and stopped a Honda SUV with two occupants, including Ligon.5 Subsequent to the stop,
Moore asked both individuals for identification, and Ligon presented him with an Ohio driver’s
license for “Timothy Norman.” Moore then retreated to his vehicle, performed a records check
using the Ohio Law Enforcement Gateway database, and discovered that the photograph for
“Timothy Norman” in the database did not match the photograph on the driver’s license. After
making this discovery, while he was waiting in his vehicle for additional officers and a canine to
arrive at the scene, Moore noticed Ligon exited the Honda SUV and took off running. Moore
pursued Ligon on foot before detaining him and placing him in handcuffs. While Ligon was
subdued, Moore retraced Ligon’s flight path, and recovered, among other items, a bag of 12 blue
5
Moore’s body camera recorded the ensuing events.
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fentanyl pills. When Moore asked Ligon to provide him with a phone number, Ligon gave him
the number 216-801-9545 (“801 phone”).
For his actions in Ohio, Ligon was ultimately charged in a superseding indictment with
conspiracy to possess with intent to distribute fentanyl, in violation of 21 U.S.C. § 846 (Count
One); attempt to possess with intent to distribute fentanyl, on two separate occasions, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 846 (Counts Two and Three); and escape, in violation of
18 U.S.C. § 751(a) (Count Four). Magistrate Judge David Ruiz appointed the Office of the Federal
Public Defender to represent Ligon on May 6, 2019. Assistant Federal Public Defender Timothy
Ivey represented Ligon during his initial proceedings, including his waiver proceedings on May
13, 2019 and during a pretrial status conference on June 26, 2019. On June 4, 2019 and June 10,
2019, the government, through two ex-parte notices, expressed to the district court it believed the
Office of the Federal Public Defender’s representation of Ligon constituted a potential conflict of
interest because the Office of the Federal Public Defender also represented Benjamin Ross, who
allegedly had the same drug supplier as Ligon and was similarly charged (in a separate case) with
distributing fentanyl, in violation of 21 U.S.C. §§ 841 and 846. The district court disqualified the
Office of the Federal Public Defender from representing both Ligon and Ross on June 20, 2019,
finding that it was imperative for those defendants to have representation that was free of potential
conflicts of interest.
On October 11, 2019, Ligon moved to suppress the evidence seized from the parcels that
were intercepted by the postal inspectors in February 2019. Ligon contended that the postal
inspectors did not possess the necessary reasonable suspicion to seize the drug parcels. He also
argued that the government failed to establish the accuracy and reliability of the narcotics detection
canine. The district court denied Ligon’s motion to suppress by way of issuing a marginal order.
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In the district court’s order, it indicated it would issue a written opinion explaining its holding;
however, the court neglected to do so. Following the district court’s denial of Ligon’s suppression
motion, the case proceeded to trial.
On August 19, 2019, the government filed a notice of intent to introduce certain evidence
at trial as background or res gestae evidence, or, alternatively, under Federal Rule of Evidence
404(b). Specifically, the government sought to present evidence of Ligon’s drug trafficking in
West Virginia. Despite Ligon’s objection, the district court granted the government’s request,
determining that the evidence was admissible as both background evidence and under Rule 404(b).
At Ligon’s trial, the government offered testimony from several individuals who testified
about Ligon’s charged conduct. The government presented testimony regarding Ligon’s
communications with Juan Zazueta-Castro, an inmate at FCI Elkton, who was believed to be
involved in drug trafficking. Dennis testified that there were communications between Ligon and
Zazueta-Castro about coordinating drug shipments with illicit substances that contained fentanyl
for at least a few months before the suspect parcels were sent in February 2019. Additionally,
Dennis specifically testified that seven other drug parcels had been delivered to Delano prior to
February 2019, and that the messages exchanged between Zazueta-Castro and Ligon indicated that
both individuals had a role in the delivery of those packages.
The jury also heard testimony from DEA agent, Paul Stroney. Stroney testified that an
unidentified person’s cellphone—with the number 440-412-9015 (“440 phone”)—called a
cellphone that allegedly belonged to Ligon—with the number 216-262-0594 (“262 phone”)—an
hour and forty minutes after Ligon fled from the postal inspectors on March 1, 2019.6 Stroney
6
The record demonstrates that the 262 phone belonged to Ligon. Taylor testified that she communicated
with Ligon on March 1, 2019 using the 262 phone. The 262 phone number was also listed on the Express Wireless
receipt discovered in Ligon’s vehicle on March 1, 2019. Finally, the 262 phone was found inside the vehicle that
Ligon abandoned on March 1, 2019.
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additionally testified that the 440 phone called and texted the 801 phone, which was connected to
Ligon as well, multiple times between March 1, 2019 and March 4, 2019.7 There was also
testimony from Stroney indicating that the 440 phone tracked the shipment status of both
intercepted packages online.
Prior to the conclusion of the trial, pursuant to Federal Rule of Criminal Procedure 29,
Ligon moved for an acquittal with regard to Count Two, arguing that there was insufficient
evidence for the jury to find him guilty of that charge. The government responded that there was
enough circumstantial evidence to find Ligon guilty of Count Two. The court denied Ligon’s
motion, finding that there was sufficient evidence in the record for that matter to be submitted to
the jury.
The jury found Ligon guilty on all counts. During Ligon’s sentencing hearing on January
29, 2020, the district court mentioned various factors that it would take into consideration before
sentencing Ligon, including his criminal history, the nature and circumstances of his offenses, and
the need to protect the public. On March 9, 2020, the court issued a sentencing memorandum, in
which it thoroughly explained why it was sentencing Ligon to 360 months’ imprisonment.8 Given
Ligon’s offense level of 32 and criminal history category of IV, his Guideline statutory minimum
term of imprisonment was 300 months and subjected him to a maximum term of life
imprisonment.9 The district court varied upwards from the statutory minimum term by 60 months,
reasoning that Ligon “set himself apart from other offenders in his criminal category” and
“continues to engage in criminal activity, specifically possessing and selling drugs (including
7
Stroney determined that between that time period, the 440 phone called the 801 phone 18 times and texted
the phone 22 times.
8
Ligon was sentenced to 360 months as to Counts One, Two, and Three, and 60 months as to Count Four,
with all sentences to run concurrently.
9
Ligon’s Guidelines range was 188 months to 235 months, but pursuant to 21 U.S.C. § 841(b), that range
increased because it was less than the statutory minimum sentence of 300 months.
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opiates), that puts himself and the public at risk, despite serving multiple sentences for the same
or similar conduct.”
Ligon’s timely appeal followed.
II.
A. Counsel Disqualification
Ligon first argues that the district court erred when it disqualified the Office of the Federal
Public Defender from representing him. Ligon contends that because there was no actual or serious
conflict of interest as a result of the Office of the Federal Public Defender representing him and
another separately indicted defendant who was believed to have the same drug supplier, his initial
counsel should have been permitted to represent him throughout the duration of the case.
We review a district court’s decision to disqualify counsel for an abuse of discretion.
United States v. Cardin, 577 F. App’x 546, 552 (6th Cir. 2014) (citing United States v. Swafford,
512 F.3d 833, 839 (6th Cir. 2008)). The district court is given “wide latitude” in making these
determinations, and a court’s decision regarding the disqualification of counsel must be upheld
unless it is “arbitrary [or] without adequate reasons.” United States v. Mays, 69 F.3d 116, 121 (6th
Cir. 1995).
The Sixth Amendment states that, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. Although
“the right to select and be represented by one’s preferred attorney is comprehended by the Sixth
Amendment,” Wheat v. United States, 486 U.S. 153, 159 (1988), “the right to counsel of choice
does not extend to defendants who require counsel to be appointed for them[,]” United States v.
Gonzalez-Lopez, 548 U.S. 140, 151 (2006); see Daniels v. Lafler, 501 F.3d 735, 739 (6th Cir.
2007).
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Ligon did not have the right to select his court-appointed counsel. We have acknowledged
that while “a defendant relying on court-appointed counsel has no constitutional right to the
counsel of his choice[,]” “[t]he replacement of court-appointed counsel might violate a defendant’s
Sixth Amendment right to adequate representation or his Fourteenth Amendment right to due
process if the replacement prejudices the defendant[.]” Lafler, 501 F.3d at 740. Ligon claims that
his trial counsel was ineffective for not making certain strategic decisions, but based on the record,
we cannot find that Ligon was prejudiced by the district court’s decision to disqualify the Office
of the Federal Public Defender from representing him. See id. (offering examples of instances
when a defendant could be prejudiced by the district court’s decision to replace his counsel,
including if the court appointed new counsel to a defendant hours before a trial was scheduled to
begin or substituted a skilled lawyer with an unskilled lawyer).
Even if Ligon did have the right to select his court-appointed counsel, it would be of no
consequence because the district court did not violate Ligon’s Sixth Amendment right to counsel.
When evaluating a motion to disqualify counsel in which one party asserts that there is a conflict
of interest, the district court must consider not only any actual conflicts, but also whether there is
“a serious potential for conflict.” Wheat, 486 U.S. at 164. Here, the district court ruled that
because Ligon and Ross potentially had overlapping information about their drug supplier, if the
issue of cooperation arose, it could put them in competition with each other to obtain the most
beneficial cooperation agreement. Since the district court reasonably explained why it was
necessary to disqualify the Office of the Federal Public Defender from serving as counsel to Ligon
(and Ross)—and therefore did not arbitrarily reach its decision, see Mays, 69 F.3d at 121—the
district court did not abuse its discretion by appointing new counsel to represent Ligon.
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B. Motion to Suppress
Ligon raises several Fourth Amendment challenges related to the evidence seized in
February and March of 2019. Ligon argues that the district court erred by denying his motion to
suppress because Dennis lacked the reasonable suspicion necessary to detain the parcels in
February 2019 until they were subjected to a canine inspection. Ligon also claims that the felony
vehicle stop conducted on March 1, 2019 was an unlawful seizure. He additionally contends that
it was error for the district court not to determine the reliability of the two canine sniffs. Finally,
Ligon asserts that the district court should have held an evidentiary hearing and was required to
issue a proper written ruling explaining its denial of his suppression motion.
“When reviewing the denial of a motion to suppress, we will set aside the district court’s
factual findings only if they are clearly erroneous, but will review de novo the court’s conclusions
of law.” United States v. Lee, 793 F.3d 680, 684 (6th Cir. 2015). A factual finding will be clearly
erroneous only when, after reviewing the evidence, we are “left with the definite and firm
conviction that a mistake has been committed.” United States v. Navarro-Camacho, 186 F.3d 701,
705 (6th Cir. 1999). In such instances, “we consider the evidence in the light most favorable to
the government.” United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en banc) (quotation
omitted).
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend. IV.
“Warrantless searches violate the Fourth Amendment’s guarantee against unreasonable searches
and seizures . . . .” United States v. Smith, 549 F.3d 355, 359 (6th Cir. 2008). The burden is on
the government to prove the legality of a warrantless search. United States v. Beal, 810 F.2d 574,
577 (6th Cir. 1987).
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First, we find that Ligon lacks standing to challenge the search and seizure of the packages.
In order for Ligon to establish that he had standing to challenge the detainment of the parcels, he
must show that: (1) “he manifested a subjective expectation of privacy in the object of the
challenged search;” and (2) “society is prepared to recognize that expectation as legitimate.”
United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988) (citing California v.
Ciraolo, 476 U.S. 207, 211 (1986)). Here, Ligon could not have had any subjective expectation
of privacy in the packages because he did not send them and they were not addressed to him
personally.10 See United States v. Elgin, 57 F. App’x 659, 661 (6th Cir. 2003). In any event,
Dennis had a reasonable suspicion that both packages contained narcotics due to the parcels’ class
of mail, origin, destination, and size, which we find was a legitimate assessment considering he
had several years of experience identifying drug parcels. See United States v. Robinson, 390 F.3d
853, 870 (6th Cir. 2004) (“[O]nly reasonable suspicion, and not probable cause, is necessary in
order to briefly detain a package for further investigation, such as examination by a drug-sniffing
dog.”). Accordingly, Ligon’s Fourth Amendment rights were not violated as a result of Dennis
detaining the parcels.
Second, the felony vehicle stop was not conducted in violation of the Fourth Amendment.
According to Ligon, his vehicle was unlawfully seized on March 1, 2019 when Green attempted
to conduct a traffic stop. See United States v. Seymour, 739 F.3d 923, 928 (6th Cir. 2014) (“A
traffic stop effects a seizure of the passengers in the car . . . .”). Further, Ligon contends that
because the postal inspectors did not obtain a warrant before Green tried to engage in the vehicle
stop, the seizure was unlawful, and therefore, any evidence obtained as a result of the attempted
10
Ligon argues that he had an expectation of privacy in the first parcel because it was addressed to his
employer. That argument is unavailing because in addition to the fact that it is debatable whether Ligon was still
employed by Delano when the first package was seized, he could not have had a subjective expectation of privacy in
a package that he did not send and was sent to his employer—and not to him specifically.
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seizure should have been suppressed as fruit of the poisonous tree under Wong Sun v. United States,
371 U.S. 471 (1963). “[B]ecause a seizure does not occur when a mere show of authority occurs,
but only when one yields to a show of authority, the fourth amendment does not apply to anything
one may abandon while fleeing the police in an attempt to avoid a seizure.” United States v.
Martin, 399 F.3d 750, 752 (6th Cir. 2005) (citing California v. Hodari D., 499 U.S. 621, 629
(1991)). We have found this general rule to be applicable “even when the show of authority is an
unlawful one.” Id. (citing Hodari D., 499 U.S. at 624 n.1). In the instant case, Ligon participated
in a car chase with Green, crashed his vehicle, fled, and was not arrested until over a month later.
Therefore, Ligon’s argument fails because even if the postal inspectors did not lawfully initiate the
felony vehicle stop, the evidence shows that Ligon abandoned the vehicle and he was not seized
by the postal inspectors. See id. (“[W]hen a suspect refuses to submit to a show of authority by
the police, the suspect is not seized by the police until such time as he or she submits or is forced
to submit to police authority.”).
Third, the district court did not err by presuming that the canine sniffs were valid. Ligon
asserts that pursuant to Florida v. Harris, 568 U.S. 237 (2013), he should have been allowed to
establish the canine’s unreliability through oral argument. In his suppression motion, Ligon argued
that the affidavits to search the mail packages lacked probable cause because the affidavits did not
“state the canine’s prior history, number of arrests, false alerts, etc.” and the government did not
provide “any information setting forth the dog’s accuracy and history of deployments.” Ligon
claims that this argument amounts to a challenge of Ciga’s reliability and requires an evidentiary
hearing under Harris. We disagree.
Ligon did not challenge the canine’s underlying reliability, but instead complained about
the type of evidence contained in the search warrant. The Supreme Court in Harris found that the
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government did not need to provide a specific record of a dog’s history, and explained that “[i]f a
bona fide organization has certified a dog after testing his reliability in a controlled setting, a court
can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable
cause to search.” Harris, 568 U.S. at 246–47. Here, the affidavits to search the mail packages
stated that Twombly had “been State Certified as a Narcotics Canine handler,” that Twombly and
Ciga “were both certified in October 2018 by the Ohio Peace Officers Training Academy . . . and
in October 2018 by the North American Police Working Dog Association[,]” and had “completed
80 hours of a state-certified training program[.]” Because Ligon did not contest that Ciga was
certified by a bona fide organization, the district court did not err by presuming that the canine’s
alert provided probable cause to search without holding an evidentiary hearing. See id.Fourth, with regard to Ligon’s suppression motion, the district court did not err by failing
to issue a written ruling denying his request or by deciding not to hold oral argument. Though the
district court was neglectful by failing to provide Ligon with a written order, we must affirm the
district court’s decision if it is correct for any reason. Russ’ Kwik Car Wash, Inc. v. Marathon
Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985). Consequently, because we find that the district
court properly denied Ligon’s motion to suppress, it is not relevant to our overall analysis that the
court failed to issue a written order. Moreover, the district court was not obligated to hold an
evidentiary hearing before denying Ligon’s motion to suppress. “[A] defendant is not entitled to
an evidentiary hearing if his argument is ‘entirely legal in nature.’” United States v. Ickes, 922 F.3d
708, 710 (6th Cir. 2019) (quoting United States v. Abboud, 438 F.3d 554, 577 (6th Cir. 2006)).
Because Ligon only raised legal contentions in his suppression motion, the district court did not
err in its decision to not hold an evidentiary hearing.
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C. Constructive Amendment Regarding Count One
Ligon contends that the district court erred by amending the jury instructions in such a
manner that modified his charged offense in Count One. Count One charges Ligon with knowingly
and intentionally combining, conspiring, confederating, and agreeing with others, known and
unknown to the grand jury, to “possess with intent to distribute a mixture and substance containing
approximately 663.28 grams of fentanyl” in violation of 21 U.S.C. § 846. The verdict form read:
Question 1(a). With respect to Count 1, the amount of the mixture or substance containing
a detectable amount of fentanyl involved in the conspiracy as a whole was (indicate answer
by checking one line below):
____400 grams or more
____40 grams or more
____less than 40 grams
Ligon asserts that the district court erroneously indicated to the jury that the government was
required to prove that the mixture or substance that he possessed with the intent to distribute
contained “a detectable amount of fentanyl,” instead of 663.28 grams of fentanyl, as stated in the
superseding indictment. As Ligon acknowledged, he is claiming that the district court
constructively amended the superseding indictment by changing the jury instructions.
We generally review de novo whether an indictment has been constructively amended by
jury instructions. United States v. Pritchett, 749 F.3d 417, 428 (6th Cir. 2014). However, when a
defendant has not raised a specific objection to a constructive amendment before the district court,
as is the case here, “we are limited to ‘plain error’ review on appeal.” United States v. Benson,
591 F.3d 491, 497 (6th Cir. 2010) (quoting United States v. Kuehne, 547 F.3d 667, 682 (6th Cir.
2008)). To succeed on plain-error review, a party must show that there was an “(1) error (2) that
was obvious or clear, (3) that affected defendant’s substantial rights and (4) that affected the
fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner,
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516 F.3d 382, 386 (6th Cir. 2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459
(6th Cir. 2006)) (internal quotation marks omitted).
“A constructive amendment results when the terms of an indictment are in effect altered
by the presentation of evidence and jury instructions which so modify essential elements of the
offense charged that there is a substantial likelihood that the defendant may have been convicted
of an offense other than the one charged in the indictment.” United States v. Smith, 320 F.3d 647,
656 (6th Cir. 2003). Constructive amendments “are considered per se prejudicial and are
reversible error.” United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007).
Here, the district court did not constructively amend the superseding indictment. Ligon
claims that the use of the term “detectable amount” in the jury instructions alters Count One. In
order to find Ligon guilty of 21 U.S.C. § 846, based on his drug possession as set forth in 21 U.S.C.
§ 841, the jury needed to determine that Ligon conspired to possess with the intent to distribute “a
mixture or substance containing a detectable amount of [fentanyl.]” 21 U.S.C. § 841(b)(1)(A)(vi);
see United States v. Harris, 774 F. App’x 937, 941 (6th Cir. 2019). Whether the substance that
Ligon possessed contained 663.28 grams of fentanyl was irrelevant. Accordingly, because there
was no likelihood that Ligon was convicted of an offense other than § 846, the superseding
indictment was not constructively amended.
D. Sufficiency of the Evidence
Ligon argues that the government did not establish that there was sufficient evidence
indicating that he was guilty of the charged conduct in Counts One and Two. We disagree and
find that there was a sufficient amount of evidence to sustain the Count One and Count Two
convictions.
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Challenges pertaining to the sufficiency of the evidence supporting a criminal conviction
are reviewed de novo. United States v. Howard, 621 F.3d 433, 459 (6th Cir. 2010). “[A] defendant
claiming insufficiency of the evidence bears a heavy burden.” United States v. Maliszewski, 161
F.3d 992, 1005 (6th Cir. 1998). Such claims must be evaluated “in the light most favorable to the
government[,]” and we are required to “draw all inferences in the government’s favor in order to
determine whether any rational trier of fact could have found the elements of the offense beyond
a reasonable doubt.” Id. (citation and quotation omitted). “In addressing sufficiency of the
evidence questions, this Court has long recognized that we do not weigh the evidence, consider
the credibility of witnesses or substitute our judgment for that of the jury.” United States v.
Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). “This court may conclude that a conviction is supported
by sufficient evidence even though the circumstantial evidence does not remove every reasonable
hypothesis except that of guilt.” Kuehne, 547 F.3d at 696 (quoting United States v. Jones, 102 F.3d
804, 807 (6th Cir. 1996)).
Ligon filed a Rule 29 motion for acquittal, but only in regard to Count Two. Consequently,
his failure to make a Rule 29 motion with respect to Count One constitutes a forfeiture of any
objections to the sufficiency of the evidence as to that charge. United States v. Damra, 621 F.3d
474, 494 (6th Cir. 2010). “Where there has been a [forfeiture], we are limited in reviewing the
sufficiency of evidence to determining whether there has been a ‘manifest miscarriage of
justice.’” Id. (quoting Kuehne, 547 F.3d at 697). We can find that there has been a “manifest
miscarriage of justice” only if the “record is devoid of evidence pointing to guilt.” Kuehne,
547 F.3d at 697 (quoting United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002)).
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1. Existence of a Conspiracy (Count One)
Ligon argues that there was no evidence that he entered into a conspiracy with any other
individual between February 22, 2019 and March 1, 2019, as is stated in the superseding
indictment. “To sustain a conviction for conspiracy under 21 U.S.C. § 846, the government must
have demonstrated: (1) an agreement to violate drug laws; (2) knowledge and intent to join the
conspiracy; and (3) participation in that conspiracy.” United States v. Rosales, 990 F.3d 989, 994
(6th Cir. 2021). “[P]roof of a formal agreement is not necessary; a tacit or material understanding
among the parties will suffice.” United States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009) (quoting
United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005)). Further, the “government may meet
its burden of proof through circumstantial evidence.” United States v. Layne, 192 F.3d 556, 567
(6th Cir. 1999).
Here, the evidence is sufficient to show that a reasonable jury could find that Ligon entered
into a conspiracy to possess with the intent to distribute a mixture and substance containing
fentanyl during the dates listed in the superseding indictment. The jury could have inferred that
there was a tacit understanding between Ligon and the person communicating with him through
the 440 number to engage in a conspiracy to possess with the intent to distribute fentanyl. Whoever
had access to the 440 number monitored the shipping status of both parcels, and was apparently
invested in, or at least curious about, when they arrived in Ohio. That same individual also called
Ligon soon after he was supposed to secure the second parcel. Moreover, the jury could have
taken into consideration that Ligon was undoubtedly involved in drug-dealing activities based on
his interactions with Zazueta-Castro. Though the evidence is certainly circumstantial, Ligon did
not suffer a manifest miscarriage of justice with regard to his Count One charge because when all
of the evidence is considered together, the jury could have concluded that Ligon violated § 846.
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Case No. 20-3305, United States v. Rayshawn Ligon
See United States v. Hunt, 521 F.3d 636, 647 (6th Cir. 2008) (“[D]irect evidence of the conspiracy
is not necessary. It is enough to present circumstantial evidence which a reasonable person could
interpret as showing participation in a common plan . . . . (internal quotation omitted)).
2. Attempt to Possess with Intent to Distribute Fentanyl (Count Two)
Ligon additionally contends that the government failed to present a sufficient amount of
evidence proving that he attempted to possess with the intent to distribute fentanyl on February
22, 2019. “To convict a person of ‘attempt’ to commit a drug offense, the government must
establish two essential elements: (1) the intent to engage in the proscribed criminal activity; and
(2) the commission of an overt act which constitutes a substantial step towards commission of the
proscribed criminal activity.” United States v. Argo, 23 F. App’x 302, 306 (6th Cir. 2001) (citing
United States v. Pennyman, 889 F.2d 104, 106 (6th Cir. 1989)). We have defined “substantial
step” as “conduct strongly corroborative of the firmness of the defendant’s criminal intent.”
United States v. Burns, 298 F.3d 523, 539 (6th Cir. 2002) (quoting United States v. Bilderbeck,
163 F.3d 971, 975 (6th Cir. 1999)).
Ligon argues only that the government has not proven that he took a substantial step
towards engaging in conduct violative of § 841 and § 846. The record demonstrates that during
January 2019, Ligon and Zazueta-Castro discussed a parcel containing fentanyl, which would be
later delivered to Delano and was sent from Modesto, California. On February 22, 2019, a different
package—that was discovered by the postal inspectors—was sent to Delano from Modesto,
California, and contained fentanyl. We have held that “when a defendant engages in active
negotiations to purchase drugs, he has committed the ‘substantial step’ towards the crime of
possession required to convict him of attempted possession.” Bilderbeck, 163 F.3d at 975. Thus,
a rational trier of fact could have determined that the parcel delivered on February 22 was part of
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ongoing and active drug-trafficking activities that were initiated between Ligon and Zazueta-
Castro due to the similarities between both parcels. A rational trier of fact might have also
considered that the 440 phone—that called and texted Ligon’s phone—tracked the shipping status
of the parcel delivered on February 22. Also, it would have been reasonable for a rational juror to
take into consideration that the fentanyl pills retrieved from the package delivered on February 22
were the same size and color as the fentanyl pills—which the record demonstrates Ligon also
attempted to possess with the intent to distribute—recovered from the parcel that was delivered
only a few days later, on February 27. Accordingly, when the totality of the evidence is considered,
our review of the record reveals that the government put forth sufficient—albeit circumstantial—
evidence that could convince a rational trier of fact that Ligon was guilty of Count Two.
E. Alleged Prejudicial Evidence
Ligon argues that it was error for the district court to allow the government to introduce
evidence related to his arrest in West Virginia. He contends that his arrest in West Virginia was
not relevant to the charges he faced and that evidence relating to that arrest should have been
excluded because it was highly prejudicial.
We review the district court’s evidentiary rulings for an abuse of discretion. United States
v. Dunnican, 961 F.3d 859, 873 (6th Cir. 2020). We will find that there has been an abuse of
discretion if the district court “made ‘errors of law or clear errors of factual determination.’”
United States v. Daneshvar, 925 F.3d 766, 775 (6th Cir. 2019) (quoting United States v. Baker,
458 F.3d 513, 517 n.6 (6th Cir. 2006)). However, even if the district court abused its discretion,
any evidentiary errors are subject to harmless error review. United States v. Kilpatrick, 798 F.3d
365, 378 (6th Cir. 2015). Pursuant to this rule, any “error, defect, irregularity, or variance that
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Case No. 20-3305, United States v. Rayshawn Ligon
does not affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a); United States v.
Meda, 812 F.3d 502, 515 (6th Cir. 2015).
Under Federal Rule of Evidence 404(b), “[e]vidence of any other crime, wrong, or act is
not admissible to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). There are two exceptions
to this general rule that are relevant to the issues raised on appeal. The first is that “intrinsic act”
evidence, including “background” or “res gestae” evidence is admissible. United States v. Sumlin,
956 F.3d 879, 889–90 (6th Cir. 2020). Intrinsic acts are acts “that are inextricably intertwined with
the criminal act charged or a part of the criminal activity as opposed to extrinsic acts, which are
those that occurred at different times and under different circumstances from the offense
charged.” United States v. Churn, 800 F.3d 768, 779 (6th Cir. 2015) (quoting United States v.
Stafford, 198 F.3d 248, at *4 (6th Cir. 1999)). Proper background evidence “has a causal, temporal
or spatial connection with the charged offense.” Sumlin, 956 F.3d at 890 (quoting United States
v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000)). The second exception to Rule 404(b) is that evidence
“may be admissible for another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
At trial, the district court overruled Ligon’s objection to the introduction of evidence of his
West Virginia arrest. The court determined that the evidence was admissible as background
evidence, finding that the acts were “inextricably intertwined with the defendant’s involvement in
a drug trafficking conspiracy and his continued attempted possession with the intent to distribute
the fentanyl that was discovered in West Virginia.” The court also stated that “[i]n the alternative,
even if it were not to be res gestae, it would be admissible under 404(b) as intrinsic evidence to
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Case No. 20-3305, United States v. Rayshawn Ligon
show the defendant’s knowledge, intent, identity, preparation, and planning, [and] certainly [to]
demonstrate[] a lack of mistake or accident.”
We agree with the district court’s assessment as to the evidence being admissible as
background evidence. The postal inspectors attempted to conduct a felony stop on Ligon’s vehicle
on March 1, 2019 because they believed he had engaged in dealing fentanyl pills. When Ligon
was finally apprehended on April 11, 2019—only forty-one days later—West Virginia police
officers recovered fentanyl pills that Ligon arguably had on his person and discarded while being
chased by the police. The district court reasonably held that all of the evidence connected to
Ligon’s arrest in West Virginia was admissible because it showed that in April 2019, Ligon still,
at the very least, engaged in possessing fentanyl pills—an element of his charged conduct in
Counts One, Two, and Three—a little over a month after he was alleged to have participated in
drug crimes in Ohio. The acts in West Virginia were inextricably intertwined with the acts in Ohio
because they both demonstrated that Ligon was involved with a drug-trafficking conspiracy.
Therefore, the evidence pertaining to the events in West Virginia was accurately admitted as
background evidence. Accordingly, the Court need not address Ligon’s contentions regarding
whether the evidence was admissible pursuant to Rule 404(b). Sumlin, 956 F.3d at 891.
F. Ineffective Assistance of Counsel
Ligon also claims that his trial counsel was ineffective for: (1) failure to sever Count Four
from the other counts; (2) failure to object to the verdict forms and jury instructions; and (3) failure
to object to his case being tried before an all-white jury. “Ineffective assistance of counsel claims
are mixed questions of law and fact[,]” and we review them de novo. United States v. Carter,
355 F.3d 920, 924 (6th Cir. 2004). We typically refrain from addressing ineffective-assistance-
of-counsel claims on direct appeal unless the existing record is “adequate to assess properly the
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Case No. 20-3305, United States v. Rayshawn Ligon
merits of the claim.” United States v. Hynes, 467 F.3d 951, 969 (6th Cir. 2006) (quoting United
States v. Franklin, 415 F.3d 537, 555–56 (6th Cir. 2005)). As we have explained, “a motion
under 28 U.S.C. § 2255 is generally the preferred mode for raising a claim of ineffective assistance
of counsel.” United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012).
We find that the record is not sufficiently developed to support Ligon’s ineffective-
assistance-of-counsel contentions. With respect to each of Ligon’s specific claims, for our Court
to make an adequate assessment of trial counsel’s representation of Ligon, we would need further
information that would explain why counsel took, or failed to take, certain actions. This could be
accomplished by way of trial counsel detailing his choices in an affidavit. Nevertheless, the
evidence necessary for our Court to make determinations as to Ligon’s claims is absent from the
record. Furthermore, Ligon’s claims are best litigated at the district court, “which is the forum
best suited to developing the facts necessary to determining the adequacy of representation because
it may take testimony from witnesses including the defendant, prosecution, and counsel.” Id.(quoting Massaro v. United States, 538 U.S. 500, 505–06 (2003)) (internal quotation marks
omitted). We therefore decline to review Ligon’s ineffective-assistance-of-counsel claims.
G. Procedural and Substantive Reasonableness
Ligon argues that his sentence was both procedurally and substantively unreasonable.
Ligon claims that it was error for the district court to issue a post-sentence sentencing
memorandum because it precluded him from raising objections to the court’s findings made in its
written order. He also alleges that the district court erred by imposing a sentence that was above
the Guideline statutory minimum sentence. We find that neither of Ligon’s claims have merit.
We apply a “deferential abuse-of-discretion standard” when reviewing a district court’s
sentencing determination. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (quoting Gall
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Case No. 20-3305, United States v. Rayshawn Ligon
v. United States, 552 U.S. 38, 41 (2007)). As for procedural reasonableness, a district court abuses
its discretion if it
commit[s] [a] significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider
the § 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. “A claim that a sentence is substantively unreasonable is a claim that a
sentence is too long (if a defendant appeals) or too short (if the government appeals).” United
States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). The substantive reasonableness analysis
considers whether “the court placed too much weight on some of the [18 U.S.C.] § 3553(a) factors
and too little on others in sentencing the individual.” Id. Moreover, “[t]he fact that [we] might
reasonably have concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall, 552 U.S. at 51.
We construe Ligon’s first claim as a procedural reasonableness argument because he is
asserting that the district court failed to adequately explain its reasons for issuing its sentence.
Ligon implies that there were findings made by the court in its sentencing memorandum that the
court did not address with Ligon at his sentencing hearing. Ligon does not direct the Court to any
findings made by the district court in its written opinion that he would have objected to at his
sentencing hearing. Further, Ligon does not point to any specific differences between the findings
in the sentencing memorandum and the findings made by the court at his hearing. Moreover,
Ligon does not provide the Court with any supporting authority that stands for the proposition that
a district court is prohibited from issuing a post-sentencing written order after adequately
explaining on the record the reasons why the court was imposing a specific sentence. Ligon’s
procedural reasonableness argument therefore fails.
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Ligon’s other contention, which we consider a substantive reasonableness argument, is that
the district court’s imposed 360-month sentence was unwarranted.
A sentence is substantively reasonable if it is “proportionate to the seriousness of the
circumstances of the offense and offender, and sufficient but not greater than necessary, to comply
with the purposes” of the sentencing factors. United States v. Vowell, 516 F. 3d 503, 512 (6th Cir.
2008) (quoting United States v. Smith, 505 F.3d 463, 470 (6th Cir. 2007)) (internal quotation marks
omitted). When considering substantive reasonableness, we take into account “the totality of the
circumstances, including the extent of any variance from the Guidelines range.” Gall, 552 U.S.
38 at 51. A sentence may be considered substantively unreasonable if “the district court selects a
sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United
States v. Sexton, 889 F.3d 262, 265 (6th Cir. 2018) (quoting United States v. Robinson, 813 F.3d
251, 264 (6th Cir. 2016)). The district court should “consider all of the § 3553(a) factors to
determine whether they support the sentence requested by a party[,]” and “must adequately explain
the chosen sentence to allow for meaningful appellate review and to promote the perception of fair
sentencing.” Gall, 552 U.S. at 49–50.
Here, the district court sufficiently weighed the § 3553(a) factors and Ligon does not argue
otherwise. The court discussed Ligon’s extensive criminal history, and said that it had “rarely seen
a criminal history so extensive and serious.”11 The court additionally assessed the nature and
circumstances of Ligon’s offenses, and explained that Ligon was “attributed with a total of 663.28
grams of the deadly opiate fentanyl throughout his course of conduct underlying the drug
offenses.” The court also considered the need to protect the public, finding that it needed to shield
11
Ligon was previously convicted of multiple state and federal drug charges.
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the public from Ligon because he was responsible for contributing to the persisting opioid
epidemic. The court ultimately held that while the 360-month sentence was substantial, it was
necessary to deter Ligon from continuing to participate in criminal activities involving drugs.
Therefore, because the district court comprehensively balanced the § 3553(a) factors, we find that
Ligon’s sentence was not substantively unreasonable.
III.
For the foregoing reasons, we AFFIRM the district court’s judgment.
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