United States v. Troy Edward Bush ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0247p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> Nos. 21-1136/1404/1408/2730
│
v. │
│
MARK ANTHONY MOSLEY (21-1136); STACEY │
PARCELL GIBSON (21-1404); TROY EDWARD BUSH (21- │
1408); RICARDO MERCADO-LOZANO (21-2730), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:20-cr-00007—Paul Lewis Maloney, District Judge.
Argued: July 21, 2022
Decided and Filed: November 18, 2022
Before: SUTTON, Chief Judge; KETHLEDGE and READLER, Circuit Judges.
_________________
COUNSEL
ARGUED: Stephenie Lape Wolfinbarger, STEPHENIE LAPE WOLFINBARGER, PLLC,
Cincinnati, Ohio, for Appellant in 21-1136. Timothy F. Sweeney, LAW OFFICE OF
TIMOTHY F. SWEENEY, Cleveland, Ohio, for Appellant in 21-1404. Paul L. Mitchell, PAUL
L. MITCHELL, P.L.L.C., Grand Rapids, Michigan, for Appellant in 21-2730. Vito S. Solitro,
UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Stephenie Lape Wolfinbarger, STEPHENIE LAPE WOLFINBARGER, PLLC,
Cincinnati, Ohio, for Appellant in 21-1136. Timothy F. Sweeney, LAW OFFICE OF
TIMOTHY F. SWEENEY, Cleveland, Ohio, for Appellant in 21-1404. Paul L. Mitchell, PAUL
L. MITCHELL, P.L.L.C., Grand Rapids, Michigan, for Appellant in 21-2730. Lawrence J.
Phelan, Walker, Michigan for Appellant in 21-1408. Daniel T. McGraw, UNITED STATES
ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
READLER, J., delivered the opinion of the court in which SUTTON, C.J., joined in full,
and KETHLEDGE, J., joined in part. KETHLEDGE, J. (pp. 25–26), delivered a separate
opinion concurring in part and dissenting in part.
Nos. 21-1136/1404/1408/2730 United States v. Mosley, et al. Page 2
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Troy Bush, Stacey Gibson, Ricardo Mercado-
Lozano, and Mark Mosley challenge their respective convictions and sentences arising from a
cocaine, fentanyl, heroin, marijuana, and methamphetamine drug distribution conspiracy. We
agree with Gibson that his post-conviction letter to the district court asserting a perfunctory
denial of guilt was an improper basis to impose a two-level enhancement for obstruction of
justice under U.S.S.G. § 3C1.1. Otherwise, we reject defendants’ arguments and affirm their
convictions and sentences.
I.
A few years ago, federal, state, and local law enforcement agencies began investigating
Andrew Bravo for drug trafficking. Over time, those investigatory efforts revealed that Bravo
sat at the head of an interstate drug trafficking organization. The organization operated as
follows: a contact in Mexico connected Bravo to drug suppliers, one of whom was Mercado-
Lozano. When Bravo received drugs from those suppliers, he would route them to associates for
distribution. Those associates included Bush, Gibson, and Mosley.
Each man played a different role within Bravo’s organization. Bush maintained one of
Bravo’s stash houses, tended to a marijuana grow on the property, and occasionally distributed
drugs on Bravo’s behalf. Gibson was a street-level drug dealer who bought distribution
quantities of cocaine from Bravo on five or six occasions. Mercado-Lozano, a 14-year veteran
of the Sinaloa Cartel, was one of Bravo’s methamphetamine suppliers. Mosley bought
distribution quantities of cocaine, fentanyl, heroin, and marijuana from Bravo and sold them.
After a two-year investigation, a federal grand jury indicted Bravo, Bush, Gibson, Mercado-
Lozano, and Mosley for violating federal drug laws. From there, defendants’ prosecutions
diverged. We take them in turn.
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II. Bush
Bush’s appeal takes aim at the second reauthorization of a wiretap used to collect
evidence against Bravo’s coconspirators, including Bush.
The grand jury charged Bush with three violations of federal criminal drug laws. Much
of the evidence the government relied on in pursuing those charges derived from a twice-
reauthorized wiretap of Bravo’s telephonic communications that captured conversations with and
about Bush as well as other coconspirators. Bush moved to suppress the wiretap evidence.
When that motion was denied, Bush agreed to plead guilty to a drug conspiracy count in
exchange for dismissal of the other two counts. In so doing, Bush preserved his right to appeal
the suppression issue.
Consistent with his plea agreement, Bush asks us to answer one question: did the district
court abuse its discretion in reauthorizing the wiretap of Bravo’s phone for the second time? See
United States v. Gardner, 32 F.4th 504, 514 (6th Cir. 2022). In our view, it did not.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–
2520, regulates the government’s use of wiretaps. An application to intercept wire
communications must, among other things, “include . . . a full and complete statement as to
whether or not other investigative procedures have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c). To
satisfy this “necessity” requirement, the government must show (1) the wiretap is not the
investigation’s “initial step,” (2) traditional techniques would not suffice, and (3) if investigators
rely on prior experiences in explaining the inadequacy of traditional techniques, those
experiences relate “to the particular facts of the investigation at hand.” Gardner, 32 F.4th at
515–17 (citation omitted). And as the application here was a second request to extend a
previously issued wiretap, a fourth mandatory showing applied: the government’s application
needed to include any fruit borne by the initial wiretap or have reasonably explained why those
efforts came up barren. 18 U.S.C. § 2518(1)(f).
In deeming the reauthorized wiretap necessary, the reauthorizing judge did not act
outside of his “considerable” discretion in granting the government’s request. United States v.
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Young, 847 F.3d 328, 343 (6th Cir. 2017) (quoting United States v. Stewart, 306 F.3d 295, 304
(6th Cir. 2002)). To begin, the reauthorization was not the investigators’ “initial step.” Gardner,
32 F.4th at 515. Before seeking this wiretap, law enforcement agents had investigated Bravo and
his cohort for over two years through physical surveillance, cooperating sources, telephone toll
records, and GPS tracking devices, in addition to the deployment of two other previously
approved wiretaps.
Despite using these timeless tools of policework, the team of investigators had more work
to do. Their goal was “to obtain evidence to fully prosecute all the members of” Bravo’s
organization. The probe had identified several coconspirators. Still, investigators had not yet
sussed out all members of the conspiracy, identified Bravo’s sources of supply and customers, or
unearthed how Bravo was laundering drug money.
And traditional methods would not fill the gap. The application detailed twelve
categories of customary tools that law enforcement had considered and rejected as deficient.
Throughout, investigators connected their experience to the facts of the case they were building.
Physical surveillance would not suffice, for example, because of the likelihood of detection,
difficulty in trailing Bravo’s car, and isolated locations of some stash houses. Bravo had also
engaged in “cleaning,” an evasive tactic known to investigators from previous work. Making
matters worse, confidential and cooperating sources had dried up. Even where those sources had
been interviewed, the information uncovered proved inadequate. And undercover officers were a
non-starter because Bravo kept a tight circle. In short, the application drew upon specific factual
elements of the investigation at hand in determining that traditional methods would not meet the
investigation’s unfulfilled goals. Taking all of this together, the reauthorizing judge acted within
his discretion in finding that the government had satisfied § 2518(1)(c)’s necessity and extension
requirements. See id. at 517–18.
Bush disagrees. To his mind, necessity was lacking because, at the time of the second
extension, the government had “largely achieved” or “arguably already acquired sufficient
admissible evidence” to achieve its objectives. This argument, however, effectively concedes
the point. The necessity yardstick does not measure how much of the government’s investigatory
goals have been achieved. It instead asks whether, as a binary matter, the government has met its
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investigatory goals. See id. at 515 & n.1 (collecting “a litany of cases” rejecting arguments like
Bush’s). And by Bush’s own characterization, it had not.
Bush points to § 2518(5)’s requirement that the wiretap terminate “upon attainment of the
authorized objective[.]” Bush asserts that neither the government nor the district court abided by
that limitation. Yet the record tells a different tale. The government explained in its wiretap
application that its goal was “to obtain evidence to fully prosecute all the members of the
BRAVO [organization].” The district court’s wiretap authorization, in turn, aligned with that
objective and accordingly with § 2518(5) by authorizing intercepts to continue “after the first
interception” and “until all communications are intercepted” that “reveal fully the manner” of the
conspiracy. We thus see no conflict between § 2518(5) and the wiretap reauthorization.
Finally, Bush asks that we construe § 2518 to require heightened scrutiny when the
government seeks reauthorization of an existing wiretap. Yet Bush identifies no legal authority
suggesting as much. Nor does he identify a textual basis for doing so. True enough, to satisfy
§ 2518 by its terms, the government’s extension application must apprise the reviewing judge of
the initial wiretap’s fruits. See 18 U.S.C. § 2518(1)(f), (5). Here, however, there is no dispute
that the government did so.
III. Gibson
A. In his appeal, Gibson disputes both the sufficiency of the evidence supporting his
conviction as well as his ensuing sentence.
The grand jury charged Gibson with one count each of conspiring to manufacture,
distribute, and possess with intent to distribute controlled substances; and possessing cocaine
with intent to distribute it. See 21 U.S.C. §§ 846, 841(a)(1). He pleaded not guilty and stood
trial alongside Mercado-Lozano.
At trial, Bravo testified that he first became aware of Gibson when Bravo received a call
asking to buy some ecstasy. During the conversation, the caller also mentioned to Bravo that
Gibson wanted to buy a “nina,” which he understood to mean nine ounces of cocaine. Bravo
told the caller to give his phone number to Gibson. Two days later, Gibson called Bravo.
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Gibson said that he was in “slow motion,” which Bravo understood to mean that Gibson still
needed to make additional money before buying the cocaine. Bravo responded that he would sell
Gibson cocaine the following day. The next day, Bravo and Gibson exchanged texts and phone
calls and agreed to meet. Because Bravo did not want Gibson to know where he lived, the pair
met in a Planet Fitness parking lot. There, Bravo sold Gibson either 4.5 or 9 ounces of cocaine
for $1,000 per ounce.
Less than 30 minutes later, Bravo texted Gibson to inquire about the cocaine’s quality.
Gibson described the cocaine as “beautiful” and asked to purchase another 4.5 ounces. Later that
night, the two reconvened at Planet Fitness. Bravo sold Gibson 4.5 ounces of cocaine for an
additional $4,500. Fifteen minutes later, Gibson texted Bravo to report that he had inadvertently
shorted Bravo $2,500 and offered to repay him immediately. Despite testifying that he did not
have a “good [enough] relationship with [Gibson] to front him drugs,” Bravo declined Gibson’s
offer of immediate repayment. Minutes later, a wiretap recorded a phone call between the two to
discuss the money that Gibson owed. At trial, Bravo told the jury that he was not worried about
immediately recovering the cash because Gibson was “purchasing cocaine rapidly,” meaning
Bravo “knew [Gibson] would want more the next day.”
Sure enough, Gibson called Bravo the next day to plan their third cocaine deal. Gibson
told Bravo that he wanted to buy another 4.5 ounces of cocaine and would pay Bravo the
outstanding $2,500, but that he would need about an hour to do so. Bravo believed that would be
enough time for Gibson to resell the cocaine he had purchased, the proceeds of which Gibson
could use to pay back the $2,500 he owed and to cover an additional purchase of cocaine. The
pair then executed another cocaine deal in the Planet Fitness parking lot. The men consummated
a few more deals over the next week or so. But Bravo stopped selling Gibson cocaine after
Bravo began to observe law enforcement at some of their deals. When Gibson later attempted to
contact Bravo, Bravo did not respond.
In all, Bravo testified that he sold cocaine to Gibson “a good five or six times” spread
over a matter of weeks and that 4.5 ounces was the minimum increment he would sell to people
he did not know well. Gibson paid in cash each time because, in Bravo’s words, he “didn’t have
a . . . good relationship with [Gibson] to front him drugs.”
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At the close of the government’s case, Gibson unsuccessfully moved for an acquittal
under Federal Rule of Criminal Procedure 29. The jury later convicted Gibson of committing
two crimes: drug conspiracy in violation of 21 U.S.C. § 846 and possession with intent to
distribute in violation of 21 U.S.C. § 841(a)(1).
The probation office’s presentence report recommended a base offense level of 24 and a
two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. To support the
enhancement, the report cited a few sentences in a letter Gibson had sent to the district court
following his conviction and the disclosure of his draft presentence report. Gibson’s letter
denied that he purchased cocaine from Bravo and asked the district court to consider this issue
before sentencing.
With the obstruction enhancement, Gibson’s offense level was 26. This, combined with
Gibson’s category II criminal history, produced a Guidelines range of 70 to 87 months’
imprisonment. Gibson levied three objections to these calculations: (1) the obstruction
enhancement, (2) the drug quantity, and (3) the denial of a minor role reduction. The district
court overruled each objection and sentenced Gibson to 84 months’ imprisonment.
B. On appeal, Gibson challenges the sufficiency of the evidence supporting his
convictions as well the district court’s Guidelines calculation. Save for Gibson’s objection to the
U.S.S.G. § 3C1.1 enhancement, none of his claims has merit.
1. Sufficiency Of The Evidence. Gibson believes that the government offered insufficient
evidence to support his two convictions—one each for violating 21 U.S.C. § 841(a)(1)
(possession with intent to distribute) and 21 U.S.C. § 846 (drug conspiracy).
As the jury concluded otherwise, Gibson’s task is a tall one. He must convince us that
“the government’s case was so lacking that it should not have even been submitted to the jury.”
Burks v. United States, 437 U.S. 1, 16 (1978) (emphasis omitted). In conducting this legal
inquiry, we construe the “evidence in the light most favorable to the prosecution.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). We may not “weigh the evidence, assess the credibility of
the witnesses, or substitute our judgment for that of the jury.” United States v. Paige, 470
F.3d 603, 608 (6th Cir. 2006) (citation omitted). And the government need only put forth
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enough evidence, circumstantial or otherwise, United States v. Rosales, 990 F.3d 989, 994 (6th
Cir. 2021), for jurors to “draw reasonable inferences from basic facts to ultimate facts,” Jackson,
443 U.S. at 319; see also Rosales, 990 F.3d at 994 (noting that the government need not “remove
every reasonable hypothesis except that of guilt”) (citation omitted). Against this backdrop, we
ask only whether “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original).
a. Possession With Intent To Distribute. Consider first Gibson’s contention that the
government failed to present sufficient evidence that he possessed cocaine with the intent to
distribute it, in violation of 21 U.S.C. § 841(a)(1). Bravo testified that Gibson intentionally
purchased (and therefore possessed) distribution-sized quantities of cocaine on five or six
occasions. If credited, this would permit a rational juror to find each element of a § 841(a)(1)
violation beyond a reasonable doubt. See United States v. Wettstain, 618 F.3d 577, 587 (6th Cir.
2010) (explaining that a jury may find distributive intent when a defendant possesses a large
quantity of drugs). Gibson responds that we should not credit Bravo’s testimony. But we may
not entertain that request on a sufficiency challenge. Paige, 470 F.3d at 608.
b. Drug Conspiracy. Having affirmed Gibson’s § 841(a)(1) distribution conviction, we
turn to his conviction for joining Bravo’s drug conspiracy, in violation of 21 U.S.C. § 846. In its
simplest form, a conspiracy is an agreement between two or more individuals to break the law.
See Iannelli v. United States, 420 U.S. 770, 777–78 (1975). As tailored to Gibson’s case, a
“completed” drug distribution conspiracy in violation of § 846 requires a showing that Gibson
“knowing[ly] agree[d]” with another “to distribute drugs in violation of § 841(a)(1).” United
States v. Wheat, 988 F.3d 299, 306 (6th Cir. 2021). A § 846 conviction thus requires proof of
two elements beyond a reasonable doubt: (1) “two or more individuals have agreed to violate a
drug law” and (2) Gibson “knowingly and voluntarily entered into this agreement.” Id.; cf.
United States v. Potter, 927 F.3d 446, 453 (6th Cir. 2019) (acknowledging a sometimes-
employed three-element framework with only “semantic difference”).
i. The first of the two conspiracy elements merits only brief discussion. Bravo testified
at length regarding agreements extending across his network of dealers and suppliers to
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distribute drugs. Seemingly for this reason, Gibson does not contest the existence of a
conspiracy involving Bravo and other individuals.
Gibson’s sufficiency challenge thus hinges on whether the government offered sufficient
evidence that Gibson knowingly and voluntarily joined Bravo’s conspiracy. Once again, Gibson
has a steep climb ahead. With the government having established the existence of a drug
conspiracy, its evidence linking Gibson to the conspiracy “need only be slight.” United States v.
Caver, 470 F.3d 220, 233 (6th Cir. 2006). That is, the government must “demonstrate that
[Gibson] had knowledge of the conspiracy’s object and consciously committed himself to the
furtherance of that object.” Id. In practice, that standard sets a relatively low bar for the
government. Gibson’s agreement to join the conspiracy need not be “recorded or even express”;
it can be inferred from his conduct. Wheat, 988 F.3d at 306–07. Nor, for that matter, must he
have formally agreed to break the law or been an “active participant in every phase of the
conspiracy.” Paige, 470 F.3d at 608–09. It is enough for the government to show that Gibson
took part in a “common plan” to distribute drugs. Id; Wheat, 988 F.3d at 306–07 (noting an
“unspoken ‘meeting of the minds’” to “jointly achieve a drug-distribution end” also suffices).
Did the evidence permit the jury to find beyond a reasonable doubt that Gibson
knowingly joined Bravo’s drug conspiracy? We think so. In this setting, as in others, we
employ a totality of the circumstances test to assess whether a buyer of drugs knowingly joined
the seller’s conspiracy. Wheat, 988 F.3d at 309. To give that nebulous standard some structure,
we have recognized several non-exhaustive factors that, standing alone, may suggest the buyer
and seller are coconspirators. United States v. Deitz, 577 F.3d 672, 681 (6th Cir. 2009). Many
of those factors are present here.
First, knowing entry into a drug conspiracy may reasonably be inferred when a buyer
“repeated[ly] purchases . . . large quantities of drugs” from a single seller. Wheat, 988 F.3d at
308 (quoting United States v. Sills, 662 F.3d 415, 417 (6th Cir. 2011)); see also United States v.
Pritchett, 749 F.3d 417, 431 (6th Cir. 2014); United States v. Anderson, 89 F.3d 1306, 1310 (6th
Cir. 1996). That was the case for Gibson. In recurrent transactions over just two weeks, Gibson
bought 27 ounces (765 grams) of cocaine from Bravo for $27,000. As a user dose of cocaine,
the evidence revealed, can be as little as 0.1 grams, Gibson procured an enormous amount of
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cocaine from Bravo—approximately 7,650 individual doses. Cf. United States v. Hamm, 952
F.3d 728, 737 (6th Cir. 2020) (describing 40 to 60 doses of fentanyl as a “large” quantity). That
sort of repetitive, high-volume drug dealing would allow a rational juror to conclude that Gibson
and Bravo tacitly agreed that Gibson would redistribute the cocaine. See Wheat, 988 F.3d at
308–09 (collecting cases). We have reached the same conclusion, it bears noting, in other
conspiracy cases sharing analogous facts. See, e.g., United States v. Williams, 998 F.3d 716,
726, 728–30 (6th Cir. 2021) (upholding conspiracy conviction where defendant purchased 150
counterfeit Percocet pills for distribution); United States v. Martinez, 430 F.3d 317, 334 (6th Cir.
2005) (defendant engaged in repeat drug transactions with other members of the conspiracy);
United States v. Brown, 332 F.3d 363, 373 (6th Cir. 2003) (defendant had a “regular arrangement
. . . to purchase very large quantities of powder cocaine”); Anderson, 89 F.3d at 1311–12
(defendant purchased approximately 0.6 kilograms of cocaine from members of the conspiracy
and possessed a pager with the same area code as the conspiracy’s headquarters); United States
v. Bourjaily, 781 F.2d 539, 544–45 (6th Cir. 1986) (defendant executed one 1-kilogram cocaine
deal).
The “standardized” nature of Bravo and Gibson’s exchanges also suggests Gibson
knowingly joined Bravo’s conspiracy. Wheat, 988 F.3d at 309 (quoting United States v.
Thornton, 822 F. App’x 397, 406 (6th Cir. 2020)); see also United States v. Castro, 960
F.3d 857, 865 (6th Cir. 2020) (noting that an “established procedure” for drug dealing supports
the inference of conspiracy). Bravo sold Gibson cocaine five or six times, which Bravo
suspected Gibson was reselling. Each sale was a cash deal conducted in the same Planet Fitness
parking lot. And all were for quantities of cocaine in 4.5-ounce increments.
Indicia of “mutual trust” between Bravo and Gibson further support the same conclusion.
See Hamm, 952 F.3d at 736 (quoting Dietz, 577 F.3d at 680–81). One indicator of trust in the
drug conspiracy setting is when an individual “fronts” drugs to another person. See, e.g., United
States v. Henley, 360 F.3d 509, 514 (6th Cir. 2004). Placing conspiracy property in another’s
hands without prior payment, we have observed, may “suggest[] more than a buyer-seller
arrangement between the parties.” Id. (citation omitted); Wheat, 988 F.3d at 309. Mutual trust,
however, may manifest itself in other, cases-specific ways, depending on the interactions
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between the buyer and seller. Wheat, 988 F.3d at 309. Consider the facts of today’s case.
Although Bravo did not trust Gibson enough to front him drugs formally, Bravo essentially did
the same when Gibson underpaid him by $2,500 during their second deal. Because Bravo had
faith that Gibson would repay him after reselling the cocaine, he did not demand immediate
payment. In this way, Bravo had a “stake” in the success of Gibson’s cocaine distribution,
if only for a short time. See id.; see also Direct Sales Co. v. United States, 319 U.S. 703, 713
(1943) (recognizing that a wholesaler of drugs had a “stake . . . in making the profits which it
knew could come only from its encouragement of [another’s] illicit operations”). And despite
the underpayment, Bravo sold Gibson distribution quantities of cocaine three or four more times.
All said, the trial evidence permitted a rational juror to find beyond a reasonable doubt
that Gibson knowingly joined Bravo’s drug conspiracy. Cf. DeLisle v. Rivers, 161 F.3d 370, 389
(6th Cir. 1998) (en banc) (upholding conviction based entirely on circumstantial evidence).
Gibson and Bravo’s course of conduct presented familiar hallmarks of knowing participation in a
drug conspiracy: large volume sales, repetitive dealing, standardized transactions, and some
evidence of mutual trust. The scale and frequency of their cocaine exchanges were expansive
enough for a rational juror to find that Gibson knowingly agreed to redistribute Bravo’s cocaine.
See Rosales, 990 F.3d at 994 (noting that the government need not “remove every reasonable
hypothesis except that of guilt”) (citation omitted).
ii. None of Gibson’s arguments convince us otherwise. Gibson paints his connection to
Bravo as simply a run-of-the-mill “arms-length buyer-seller relationship,” not a conspiratorial
arrangement. For instance, Gibson emphasizes that he was on the outs with Bravo after just a
few weeks. Perhaps so. But Gibson’s violation of § 846 was complete upon his joining Bravo’s
conspiracy, even if that conspiracy lasted only a matter of weeks. See Wheat, 988 F.3d at 306.
Gibson aptly notes the absence of evidence indicating that he knew of or interacted with Bravo’s
coconspirators. Even so, that Gibson was “a party to the general conspiratorial agreement”
suffices to sustain his conviction for conspiracy. Paige, 470 F.3d at 609. He need not have
known or interacted with the conspiracy’s other members. Martinez, 430 F.3d at 332–33.
Other evidence, we acknowledge, might lend itself to the inference that Bravo and
Gibson had a tenuous, non-conspiratorial relationship. Case in point, Bravo testified that he was
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not close enough with Gibson to front him drugs more so than he did and that neither man trusted
the other with his home address. Taking the fronting point first, those facts may help inform the
broader inquiry into whether Bravo trusted Gibson enough to agree tacitly to distribute drugs.
But the absence of widespread fronting is not dispositive—we have upheld numerous conspiracy
convictions where no fronting occurred whatsoever. See, e.g., Castro, 960 F.3d at 865;
Martinez, 430 F.3d at 332–33. And in any event, a rational juror could conclude that Bravo’s
reaction to Gibson underpaying him, which functioned as an informal fronting of drugs, evinces
some trust between the two.
As to evidence reflecting Gibson’s broader relationship with Bravo, including their
unwillingness to share their home addresses, the jury was well situated to weigh that evidence
with an eye to the practical realities of running a drug trafficking organization. When assessing
Gibson’s guilt, for example, the jury may have considered that some amount of distrust naturally
arises between two people aware that the other is willing to engage in felonious conduct. The
jury may have drawn an analogy to a conventional workplace, where many people likely work
alongside coworkers whom they trust to pursue a common goal, but not enough to share their
home address. Or the jury may have considered the dangers of the drug trafficking world,
including the reality that drug dealers’ homes and stash houses—repositories for drugs and
cash—are robbery targets. See, e.g., United States v. Vichitvongsa, 819 F.3d 260, 264–65 (6th
Cir. 2016).
All said, Gibson and Bravo had good reason to refrain from sharing their addresses.
Neither man needed that information to fulfill his role in the conspiracy. And gratuitously
sharing one’s address could have been unwise when one considers that a coconspirator, if
apprehended, might reveal the conspiracy’s inner workings. See, e.g., United States v. Anderson,
747 F.3d 51, 73 (2d Cir. 2014) (“[A] conspiracy by its very nature is a secretive operation[.]”
(internal quotation marks and citation omitted)). Conspiracies, in other words, often work best in
secret. Long story short, whether Bravo and Gibson shared their addresses does not fully answer
whether the two trusted one another enough to work toward a general drug distribution end. In
view of the entire record, we do not see how Gibson’s and Bravo’s arguably unforthcoming
behavior precluded the jury from finding that Gibson “knowingly and voluntarily entered into”
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Bravo’s drug distribution conspiracy, Wheat, 988 F.3d at 306, particularly in light of the
mammoth quantities of cocaine changing hands.
Gibson has two remaining arrows in his quiver. First, he invokes several out-of-Circuit
cases holding that “large quantities of controlled substances, without more, cannot sustain a
conspiracy conviction.” See, e.g., United States v. Lennick, 18 F.3d 814, 819 n. 5 (9th Cir. 1994)
(citation omitted); United States v. Lechuga, 994 F.2d 346, 347 (7th Cir. 1993) (citation omitted).
But our Court, as reflected in Wheat and elsewhere, sees things differently. 988 F.3d at 308.
Time and again, we have explained that repetitive, high-volume drug dealing allows a rational
trier of fact to find that the buyer and seller have a “tacit agreement for the buyer to resell the
drugs to downstream customers.” See id. at 308–09 (collecting cases).
Finally, Gibson contends that the evidence supporting his conviction is insufficient under
the contours articulated in Wheat. 988 F.3d at 309–11. Wheat thoughtfully applied the
longstanding rule that “a buyer-seller relationship is not alone sufficient to tie a buyer to a
conspiracy.” United States v. Grunsfeld, 558 F.2d 1231, 1235 (6th Cir. 1977) (per curiam); see
Wheat, 988 F.3d at 307. That rule, Wheat explained, is a permutation of Wharton’s Rule, the
common law doctrine which instructs “that two parties cannot conspire to commit a substantive
crime when the crime itself requires two parties for its completion.” Wheat, 988 F.3d at 307–08
(emphasis in original). At the same time, Wheat also emphasized the rule’s “narrow domain.”
Id. at 308. That is, the government may step outside the rule’s reach with evidence that the
buyer and seller agreed to commit a drug crime beyond their initial transaction. Id. On that
score, consider the differences between defendants Wheat and Gibson. Wheat engaged in a one-
time delivery of a 0.3-gram sample of heroin to a prospective buyer. Id. at 304. Gibson, on the
other hand, purchased 765 grams of cocaine—at least 2,500 times the user doses at issue in
Wheat—spread across five or six transactions within a few weeks. Purchasing massive
quantities of cocaine over a meager period of time makes it eminently reasonable for the jury to
have concluded that Gibson contemplated downstream drug sales, a factor absent in Wheat. We
therefore affirm Gibson’s drug conspiracy conviction.
2. Procedural Reasonableness. Shifting gears, Gibson submits that his 84-month
sentence is procedurally unreasonable. To impose a procedurally reasonable sentence, a district
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court “must properly calculate the guidelines range, treat that range as advisory, consider the
sentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select
the sentence based on facts that are not clearly erroneous, and adequately explain why it chose
the sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018). Gibson asserts three
procedural reasonableness challenges. As he preserved each one, we review for an abuse of
discretion. United States v. Hymes, 19 F.4th 928, 932–33 (6th Cir. 2021). We examine the
district court’s ultimate Guidelines calculation de novo and its underlying factual findings for
clear error. United States v. Meek, 32 F.4th 576, 579 (6th Cir. 2022). On the latter
consideration, a factual finding is clearly erroneous when a review of the entire record leaves us
with “the definite and firm conviction that a mistake has been committed.” Id. (quoting United
States v. Fleischer, 971 F.3d 559, 567 (6th Cir. 2020)).
a. Obstruction Enhancement. Gibson first argues that the district court improperly
increased his offense level for obstruction of justice pursuant to U.S.S.G. § 3C1.1. That
enhancement was imposed because Gibson sent a post-conviction letter to the district court
denying that he purchased cocaine from Bravo.
We assume, as we have before, that whether a defendant obstructed justice or attempted
to do so is a mixed question of law and fact. See United States v. Wellman, 26 F.4th 339, 354
(6th Cir. 2022). Underlying that mixed question are “mixed messages” as to the appropriate
standard of review. Rosales, 990 F.3d at 998 n.2 (describing our intra-circuit split). Yet we need
not explore that jurisprudential thicket here because, to our minds, the district court’s imposition
of the § 3C1.1 enhancement was improper under any standard of review.
Section 3C1.1 provides for a two-level increase in a defendant’s offense level when “the
defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration
of justice with respect to the . . . sentencing of the instant offense of conviction.” U.S.S.G.
§ 3C1.1. The enhancement applies when a defendant commits any act that “blocks, makes
difficult, or hinders” a sentencing (or attempts to do so). United States v. Thomas, 933 F.3d 605,
610 (6th Cir. 2019) (quoting Marinello v. United States, 138 S. Ct. 1101, 1106 (2018)) (cleaned
up). Taken at face value, that description can encompass instances where a defendant makes a
false statement to a judge during the sentencing phase—the conduct that served as the basis for
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Gibson’s enhancement. See United States v. Sweet, 630 F.3d 477, 483–84 (6th Cir. 2011); see
also U.S.S.G. § 3C1.1 cmt. n.4(F).
But there is more to consider. Section 3C1.1 comes with commentary from the
Sentencing Commission observing that a perfunctory denial of guilt, without more, is beyond the
enhancement’s scope unless it constitutes perjury. U.S.S.G. § 3C1.1 cmt. n.2, n.4(F), n.6. The
Guidelines interpretive commentary is inapplicable, we have previously explained, if it is
“plainly erroneous or inconsistent with” § 3C1.1. United States v. Havis, 927 F.3d 382, 386 (6th
Cir. 2019) (en banc) (per curiam) (quoting Stinson v. United States, 508 U.S. 36, 45 (1993)). But
as neither party argues that is the case here, “we may assume that the commentary permissibly
interprets” § 3C1.1, leaving any interpretive questions for another day. United States v. Hill, 963
F.3d 528, 531–32 (6th Cir. 2020).
Section 3C1.1’s exclusion of perfunctory denials of guilt speaks to today’s case. The
relevant portion of Gibson’s letter was brief. There, Gibson asserted that he had neither
purchased cocaine from Bravo nor asked Bravo to sell him cocaine. He then asked the district
court to consider his innocence at sentencing. Fairly put, Gibson merely denied the acts
establishing his possession with intent to distribute conviction, consistent with what he had
maintained throughout trial. From beginning to end, in other words, Gibson simply denied his
guilt. His letter is better read to reflect his continued disgust with the verdict rather than an
instance of perjury. The district court thus erred by applying the § 3C1.1
enhancement. U.S.S.G. § 3C1.1 cmt. n.2.
The government cites two decisions it says point the other way. One is United States v.
Aideyan, 11 F.3d 74 (6th Cir. 1993). Aideyan concludes that “false statement[s] made at a
sentencing hearing regarding information that is relevant to sentencing [are] material and
nontrivial for purposes of § 3C1.1.” Id. at 76. True enough. Sweet, 630 F.3d at 484. But we
must decide the specific question of whether Gibson’s denial of guilt could qualify as a basis for
the § 3C1.1 enhancement. And the commentary to § 3C1.1, again, says it does not.
The other decision is not our own; it comes from the First Circuit. See United States v.
Olea, 987 F.2d 874, 877 (1st Cir. 1993). In Olea, the First Circuit affirmed application of the
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§ 3C1.1 enhancement when, after pleading guilty in exchange for dismissal of some charges
against him, the defendant falsely denied participation in the dismissed charges and minimized
his role in the offense of conviction. Id. at 877–88. But unlike Olea, Gibson pleaded not guilty.
And he went to trial, where he also denied guilt of the offenses for which he was ultimately
convicted. That is worlds apart from attempting to walk back an in-court admission of guilt.
That said, our holding is quintessentially fact specific. Behavior that exceeds the narrow
tolerance § 3C1.1 establishes for mere denials of guilt may well justify the enhancement. To that
end, we understand the difficult position that, as here, a district court faces in sizing up a
defendant’s letter at sentencing. A defendant’s materially false statements may “obstruct or
impede” sentencing by requiring government time and resources to disprove them. Thomas, 933
F.3d at 610–11; see, e.g., United States v. Bailey, 973 F.3d 548, 572 (6th Cir. 2020) (upholding
application of the § 3C1.1 enhancement where a defendant’s false statement “would tend to
influence or affect the issue under determination” (quoting U.S.S.G. § 3C1.1 cmt. n.6)). Equally
true, a sentencing judge who believes a materially false statement may impose a shorter sentence
than appropriate. See Thomas, 933 F.3d at 611. Long story short, a defendant who sends a
similar letter in slightly changed circumstances does so at his peril. See id. at 610.
b. Drug Quantity. Next, Gibson submits that the district court erred in calculating his
Guidelines range by finding that Gibson’s crimes involved at least 27 ounces of cocaine. Some
basic ground rules guide our review of this issue. To begin, when the evidence of drug quantity
is inconclusive, a district court should “err on the side of caution” and “only hold the defendant
accountable for a specific quantity for which he is more likely than not actually responsible.”
United States v. Johnson, 732 F.3d 577, 581 (6th Cir. 2013) (citing United States v. Walton, 908
F.2d 1289, 1301, 1302 (6th Cir. 1990)). But an estimate of the drug quantity is sufficient when
the estimate is supported by a preponderance of the evidence. Id. And in making that estimate,
the district court may rely on coconspirator testimony. United States v. Jeross, 521 F.3d 562,
570 (6th Cir. 2008). If it does so rely, we afford great weight to the district court’s credibility
determinations. United States v. Esteppe, 483 F.3d 447, 452 (6th Cir. 2007). Beyond that, we
review the district court’s drug quantity finding for clear error. United States v. Smith-
Kilpatrick, 942 F.3d 734, 746 (6th Cir. 2019).
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At Gibson’s sentencing, the district court found that his offense involved at least 27
ounces of cocaine, which yielded a base offense level of 24. This reasoned estimate follows
from Bravo’s testimony that he sold Gibson cocaine at least “a good five or six times,” which
included several 4.5-ounce sales and one sale between 4.5 and 9 ounces. As Bravo was Gibson’s
coconspirator, the district court did not err by relying on Bravo’s testimony to calculate drug
quantity. Jeross, 521 F.3d at 570. Nor was there an error in the district court’s math. True, the
district court did not expressly find that six 4.5-ounce cocaine deals took place. But its finding
of at least 27 ounces of cocaine survives clear error review because Bravo testified to once
selling Gibson either 4.5 or 9 ounces of cocaine. (For reference: 27 = 4.5 x 6; 27 = 4.5 x 4 + 9.)
Gibson counters that the only cocaine quantity proven by a preponderance was 13.5
ounces. He says that is so because Bravo recounted only three 4.5-ounce sales with “any degree
of specificity.” Gibson thus believes that his base offense level should have been 20, not 24. We
see this argument for what it is: a credibility challenge. Remember, Bravo testified to selling
Gibson at least 4.5 ounces of cocaine “a good five or six times.” And the district court, after
hearing Bravo’s live testimony, found him credible. Mindful of the great weight we attach to the
district court’s credibility determination, we conclude that its estimate was not clearly erroneous.
Johnson, 732 F.3d at 582. At day’s end, the district court’s 27-ounce finding was a plausible
conclusion to draw from the record as a whole. Id. at 582.
c. Minor Role Reduction. Gibson closes by contesting the district court’s failure to grant
him a two-level minor role reduction under U.S.S.G. § 3B1.2(b). A § 3B1.2(b) reduction is
appropriate where the defendant “was a minor participant in any criminal activity.” U.S.S.G.
§ 3B1.2(b). The Guidelines commentary, in turn, states that the reduction applies when the
defendant is “substantially less culpable than the average participant” in the offense. Id. cmt.
n.3(A) (emphasis added). But a defendant becomes more culpable when he (even
unsuccessfully) seeks a larger role in the conspiracy, making the reduction inappropriate. United
States v. Gabbard, 586 F.3d 1046, 1052 (6th Cir. 2009) (per curiam). In district court, Gibson
bore the burden to demonstrate his minor role by a preponderance of the evidence. United States
v. Daneshvar, 925 F.3d 766, 790 (6th Cir. 2019). Because we review the denial of a mitigating
Nos. 21-1136/1404/1408/2730 United States v. Mosley, et al. Page 18
role reduction for clear error, the district court has a wide berth in resolving the matter. United
States v. Lanham, 617 F.3d 873, 888 (6th Cir. 2010).
The district court did not run aground in doing so. It reasoned that the quantities of
cocaine Gibson purchased from Bravo made him a run-of-the-mill participant in the conspiracy.
The district court further observed that Gibson was no minor participant because he repeatedly
tried to contact Bravo even after Bravo broke off their relationship. Viewing Gibson’s behavior
in context, the district court inferred that Gibson aspired to a more sizeable drug distribution
relationship with Bravo. In these ways, the district court concluded, Gibson had not met his
burden to show that he was substantially less culpable than Bravo’s other coconspirators. All
things considered, we see no clear error in this conclusion. See Gabbard, 586 F.3d at 1052(affirming denial of the U.S.S.G. § 3B1.2(b) reduction when a defendant, though less culpable
than some coconspirators, attempted to enlarge his role in a drug conspiracy).
Gibson responds that the district court clearly erred by failing to consider various factors
set forth in the commentary to § 3B1.2(b). In particular, he takes issue with the lack of findings
as to his knowledge of the conspiracy’s scope and structure, his role in planning the criminal
activity, and his decisionmaking authority. By and large, however, these factors do not favor
Gibson. Yes, there is little evidence as to what Gibson knew of Bravo’s broader organization.
Yet Gibson’s own role—his purchase of the equivalent of 7,650 user doses of cocaine—was
hardly insignificant. Bravo’s testimony and phone logs, moreover, demonstrated Gibson’s
involvement in planning repeated sales at the Planet Fitness parking lot, a location Gibson
selected, as well as Gibson’s authority to initiate each deal. In view of these facts, the district
court’s denial of a minor role reduction was not clearly erroneous.
IV. Mercado-Lozano
A. Mercado-Lozano’s appeal challenges both the sufficiency of the evidence supporting
his drug conspiracy conviction as well as the substantive reasonableness of his within-Guidelines
292-month sentence.
The grand jury indicted Ricardo Mercado-Lozano for conspiring to manufacture,
distribute, and possess with intent to distribute 500 grams or more of cocaine. See 21 U.S.C.
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§§ 846, 841(a)(1), (b)(1)(B)(ii). At trial, cartel-affiliated drug distributor Arnulfo Licea
Sandoval testified as to Mercado-Lozano’s body of work for the Sinaloa Cartel. According to
that testimony, Licea sent Mercado-Lozano 10-to-20-pound packages of crystal
methamphetamine between four and six times, which Mercado-Lozano then sold. On one
occasion, Licea traveled to Indiana, picked up 15 to 20 pounds of crystal methamphetamine from
Mercado-Lozano, drove to Minnesota, and sold it. On another occasion, Mercado-Lozano
rendezvoused with Licea in California and discussed distributing methamphetamine across the
Midwest.
Bravo also testified against Mercado-Lozano. He described Mercado-Lozano as one of
his main drug suppliers. And the amounts of these supplies were not inconsequential. Bravo
purchased one to two kilograms of cocaine at a time from Mercado-Lozano. He also bought two
to five pounds of methamphetamine from Mercado-Lozano on “a few” occasions. Bravo added
that the $30,000 found in Mercado-Lozano’s car at the time of Mercado-Lozano’s arrest was
cash that Bravo had paid for a kilogram of cocaine.
The jury convicted Mercado-Lozano of the conspiracy charge. Before sentencing, the
probation office calculated his offense level as 38 with a criminal history category III, yielding a
Guidelines range of 292 to 365 months. Accepting those calculations, Mercado-Lozano
requested a downward variance from the Guidelines range due to Bravo’s 22-year sentence, the
fact that his conviction would result in deportation, and the possibility he would die in prison
while serving out a lengthy sentence. The district court rejected each argument and sentenced
Mercado-Lozano to 292 months’ imprisonment.
B. 1. Mercado-Lozano maintains that the trial evidence was insufficient to support his
drug conspiracy conviction. To convict Mercado-Lozano of a drug conspiracy, the government
needed to prove two elements beyond a reasonable doubt: (1) that “two or more individuals . . .
agreed to violate a drug law” and (2) Mercado-Lozano “knowingly and voluntarily entered into
this agreement.” Wheat, 988 F.3d at 306. In assessing the trial record, our review is narrow in
scope. We examine the record to determine whether “any rational trier of fact” could have found
that the government proved beyond a reasonable doubt the two elements of the conspiracy
charge. Jackson, 443 U.S. at 319 (emphasis in original). In making that assessment, we neither
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reweigh the evidence nor second-guess the jury. Id.; see Paige, 470 F.3d at 608. In Mercado-
Lozano’s case, the hill before him is even steeper: because he failed to move for an acquittal at
trial, we must reject his sufficiency challenge unless his conviction amounts to a “manifest
miscarriage of justice.” United States v. Sherer, 770 F.3d 407, 411 (6th Cir. 2014) (quoting
United States v. Tragas, 727 F.3d 610, 617 (6th Cir. 2013)). For that to be so, Mercado-Lozano
must demonstrate that the record is “devoid of evidence pointing to guilt.” Tragas, 727 F.3d at
618 (citation omitted).
Like Gibson, Mercado-Lozano concedes the existence of Bravo’s distribution conspiracy.
But he disputes that he voluntarily participated in it, maintaining that he joined due to fear of the
cartel. His willing involvement in the cartel, however, is well supported by the evidence.
Multiple witnesses testified to Mercado-Lozano’s extensive role in the cartel’s operations: an
investigating agent said that Mercado-Lozano admitted to working for the cartel for 14 years in
at least four states; Licea told the jury about his monthslong stint sending 10-to-20-pound
packages of crystal methamphetamine to Mercado-Lozano for resale; and Bravo testified to
purchasing more than $30,000 of cocaine from Mercado-Lozano. Another government witness
with expertise in the drug trade testified that he could not think of an instance of someone
working for a cartel for 14 years without an opportunity to get out. Based on the length and
extent of Mercado-Lozano’s history with the cartel, a rational juror could reasonably infer that he
was a voluntary participant.
2. Next, Mercado-Lozano contends that his 292-month prison sentence is substantively
unreasonable. In essence, this is an argument that his sentence is too long due to the district
court improperly weighing the statutory sentencing factors set forth in 18 U.S.C. § 3553(a).
United States v. Milliron, 984 F.3d 1188, 1195–96 (6th Cir. 2021). We review for an abuse of
discretion. Hymes, 19 F.4th at 932–33. And we presume Mercado-Lozano’s 292-month
sentence is substantively reasonable because it falls within his Guidelines range (292 to 365
months). United States v. Michael, 576 F.3d 323, 329 (6th Cir. 2009); cf. Rita v. United States,
551 U.S. 338, 347 (2007) (permitting this presumption).
That presumption is well founded. In keeping with the requirements of § 3553(a), the
district court at sentencing highlighted the “grave” nature of Mercado-Lozano’s drug trafficking.
Nos. 21-1136/1404/1408/2730 United States v. Mosley, et al. Page 21
Mercado-Lozano was a longtime participant in organized crime, personally distributing dozens
of kilograms of methamphetamine and cocaine. With that record in mind, the district court
expressed “severe doubts” about Mercado-Lozano’s ability to refrain from criminal activity,
citing his continued trafficking after a December 2018 raid of his home. The court likewise
noted the “scourge” that methamphetamine imposed on the Western District of Michigan. All
said, the district court acted within its discretion. See Michael, 576 F.3d at 329.
Mercado-Lozano responds with two counterpoints: (1) a 10:1 ratio in the Guidelines
treatment of pure versus mixed methamphetamine arbitrarily augmented his sentence; and (2) his
codefendants received shorter sentences. Together, he says, these flawed considerations left him
with a “life sentence” due to his age (48) and purported life expectancy (68.8 years).
Neither point has salience. His challenge to the 10:1 methamphetamine-mixture ratio
amounts to little more than a policy disagreement with the Guidelines, which the district court
had discretion to reject. United States v. Johnson, 812 F. App’x 329, 334–35 (6th Cir. 2020)
(citing United States v. Lynde, 926 F.3d 275, 281 (6th Cir. 2019)). Likewise, any disparity
between Mercado-Lozano’s sentence and those of his codefendants is legally unremarkable, for
at least two reasons. One, § 3553(a) requires consideration of national sentencing disparities, not
those among codefendants. United States v. Houston, 529 F.3d 743, 752 (6th Cir. 2008); 18
U.S.C. § 3553(a)(6). Two, his codefendants received within-Guidelines sentences
commensurate with their own crimes and criminal histories. The lone exceptions were for
individuals like Bravo who, unlike Mercado-Lozano, admitted guilt, pleaded guilty, and
cooperated, and thus benefitted from U.S.S.G. § 5K1.1 motions. Any disparity here, in other
words, was well grounded. United States v. Conatser, 514 F.3d 508, 522 (6th Cir. 2008).
V. Mosley
Mosley’s appeal challenges his sentence imposed by the district court.
In exchange for dismissal of other charges against him, Mosley agreed to plead guilty to
one count of conspiracy to manufacture, distribute, and possess with intent to distribute cocaine,
fentanyl, heroin, marijuana, and 50 grams or more of methamphetamine. In his plea agreement,
Mosley waived his right to appeal his sentence subject to a handful of exceptions, one of which
Nos. 21-1136/1404/1408/2730 United States v. Mosley, et al. Page 22
is relevant here. That exception allows Mosley to argue that the district court “incorrectly
determined the Sentencing Guidelines range,” but only if he objected at the sentencing hearing
on that basis.
For purposes of calculating Mosley’s Guidelines range, the probation office placed him
in criminal history category IV and proposed an offense level of 33 for his crime. The proposed
offense level incorporated a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing
a firearm during the drug conspiracy. The resulting Guidelines calculation ranged from 188 to
235 months’ imprisonment. Mosley objected to the firearm enhancement and moved for a
downward variance on the basis that the criminal history category IV overstated his propensity
for crime.
At Mosley’s sentencing hearing, the district court heard testimony regarding the firearm
enhancement. A detective present when officers found the firearm at issue—a .22 caliber Ruger
handgun—testified that the Ruger was in a closet in Mosley’s girlfriend’s basement. According
to the detective, the gun was inches away from two bags of a heroin-fentanyl mixture and about a
foot and a half away from a tee shirt press covered with cocaine and methamphetamine residue.
The gun was unloaded, and agents found no ammunition.
Mosley’s girlfriend also testified. She said that he returned home a week or two before
the raid, at which point he gave her the Ruger as a present. Mosley encouraged her to keep the
gun in her bedroom for protection. But as she was apprehensive about having the Ruger near her
kids, Mosley took it to the basement. Mosley’s girlfriend also testified that the drugs and drug
paraphernalia in the basement did not belong to her.
In the end, the district court adopted the probation office’s recommended Guidelines
range of 188 to 235 months and sentenced Mosley to 200 months’ imprisonment. Mosley now
protests the district court’s imposition of the firearm enhancement as well as the overall length of
his sentence.
Because Mosley lodged his firearm enhancement objection to the district court’s
Guidelines range calculation at sentencing, that challenge is not waived. So we turn our
attention to § 2D1.1(b)(1), which requires a district court to increase a drug defendant’s offense
Nos. 21-1136/1404/1408/2730 United States v. Mosley, et al. Page 23
level by two “[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G.
§ 2D1.1(b)(1). The enhancement applies when the government establishes by a preponderance
of the evidence that (1) the defendant actually or constructively possessed the dangerous weapon
(2) during the offense. United States v. West, 962 F.3d 183, 187 (6th Cir. 2020) (citing United
States v. Hill, 79 F.3d 1477, 1485 (6th Cir. 1996)); United States v. McCloud, 935 F.3d 527, 531
(6th Cir. 2019).
Mosley largely admits that he possessed the Ruger, so we turn our attention to assessing
whether he did so during the conspiracy offense. Six factors bear on that determination: (1) the
type of gun Mosley possessed, (2) its accessibility, (3) the presence of ammunition, (4) the gun’s
proximity to illegal drugs, cash, or drug paraphernalia, (5) evidence that Mosley used the
weapon, and (6) whether Mosley was engaged in drug trafficking, rather than manufacturing or
possession. United States v. Pryor, 842 F.3d 441, 453 (6th Cir. 2016) (quoting United States v.
Greeno, 679 F.3d 510, 515 (6th Cir. 2012), abrogated on other grounds by N.Y. State Rifle &
Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022)). As this is a question of law, we review the
district court’s determination de novo. West, 962 F.3d at 187–88.
The district court concluded that these factors “heavily . . . favor[ed]” application of the
enhancement. It is easy to see why. The Ruger was a small pistol that was not difficult to
conceal, which, as a government witness testified, made it practical for use by a drug trafficker.
Agents found the Ruger in Mosley’s workshop in the basement of his girlfriend’s home.
Mosley’s girlfriend testified that he had brought the gun there, confirming his access to it. The
Ruger was inches away from Mosley’s fentanyl stash and only a foot and a half away from the
drug residue on the tee shirt press. True, the absence of ammunition favors Mosley. Yet that
fact stands in the shadow of the mountain of evidence supporting the enhancement. United
States v. Chalkias, 971 F.2d 1206, 1217 (6th Cir. 1992) (per curiam) (affirming application of the
enhancement where the only fact weighing in the defendant’s favor was the absence of
ammunition). All things considered, the district court did not err in applying the enhancement.
That leaves Mosley’s substantive reasonableness claim. Yet the claim has a threshold
flaw: Mosley does not assert as part of his argument that the district court “incorrectly
Nos. 21-1136/1404/1408/2730 United States v. Mosley, et al. Page 24
determined the Sentencing Guidelines range.” As a result, his challenge does not fall within the
scope of exceptions to his appeal waiver.
Seeing his case as analogous to United States v. Tice, 366 F. App’x 569 (6th Cir. 2010),
however, Mosley responds by urging us to expand the meaning of his waiver exception. Tice’s
plea agreement also waived his appeal rights, except as to the district court’s “adverse
determination of any disputed guideline issue.” Id. at 570. We held that Tice could advance a
substantive reasonableness claim on appeal despite the waiver because the question of his
criminal history category counted as a “disputed guideline issue.” Id. at 572. Setting aside the
fact that Mosley concedes that his criminal history calculation was “objectively correct,” Tice is
no refuge for him. After all, the exception to his general appeal waiver covers only the
Guidelines range calculation, not the selection of a sentence once that range is calculated. Cf.
United States v. Hollins-Johnson, 6 F.4th 682, 684 (6th Cir. 2021). And as the exception’s plain
text does not cover Mosley’s substantive reasonableness argument, we cannot consider it.
VI.
To sum up, we affirm the denial of Troy Bush’s motion to suppress, affirm Ricardo
Mercado-Lozano’s conviction and sentence, and affirm Mark Mosley’s sentence. We also affirm
Stacey Gibson’s conviction, but we vacate his sentence and order a limited remand for purposes
consistent with this opinion.
Nos. 21-1136/1404/1408/2730 United States v. Mosley, et al. Page 25
_____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_____________________________________________________
KETHLEDGE, Circuit Judge, concurring in part and dissenting in part. Although I join
most of the majority’s well-crafted opinion, I respectfully disagree that the evidence at trial was
sufficient to support Stacey Gibson’s conspiracy conviction. As an initial matter, I agree with
the majority that the government proved the existence of a conspiracy “extending across
[Bravo’s] network of dealers and suppliers to distribute drugs.” Op. at 8-9. I also agree that the
government proved that Gibson himself possessed cocaine—namely the cocaine he bought from
Bravo—with the intent to distribute it. What the government did not prove, however, is that
Gibson agreed to advance Bravo’s network-wide conspiracy.
“Generally, a buyer-seller relationship alone is insufficient to tie a buyer to a
conspiracy[.]” United States v. Deitz, 577 F.3d 672, 680 (6th Cir. 2009). A buyer-seller
relationship is what the government proved here: Gibson bought about 18 ounces of cocaine
from Bravo in three transactions during a 48-hour period. When asked whether he sold drugs to
Gibson on other occasions, Bravo testified, “I’m not exactly sure”; but when further prompted
(with a leading question) by the government, Bravo said that he sold cocaine to Gibson two or
three more times during the following week or so. The question, then, is whether the
government’s proof at trial made this case the exceptional one where a buyer-seller relationship
is sufficient to tie the buyer to a larger conspiracy.
On that score, the government points to the number of transactions between Bravo and
Gibson—five or six, construing the record very much in the light most favorable to the
government—and the total quantity of cocaine sold in those transactions, about 27 ounces. But
if that is proof enough here, then any buyer-seller relationship between dealers is enough to show
that the buyer agreed to join the seller’s network-wide conspiracy. Not even the government
advocates that rule. See United States v. Colon, 549 F.3d 565 (7th Cir. 2008).
Meanwhile, in this case, the other “‘factors’ that allow a jury to find an agreement
between a buyer and seller to go beyond their own sale” all point affirmatively the other way.
Nos. 21-1136/1404/1408/2730 United States v. Mosley, et al. Page 26
United States v. Wheat, 988 F.3d 299, 308 (6th Cir. 2021). One such factor is “evidence of an
enduring arrangement” between the buyer and seller, id. at 309; here, at most, the arrangement
endured for all of ten days. Another factor is evidence revealing “a level of trust that is unusual
for a buyer-seller relationship alone.” Id. Bravo expressly testified that the opposite was true
with Gibson: “I didn’t trust him to know where I lived” and “[h]e didn’t trust me.” Another
factor is evidence that the buyer and seller “engaged in ‘standardized’ transactions, acting with a
level of efficiency more inherent in a vertically integrated enterprise than in random ‘spot’
sales.” Id. But here Bravo testified that he and Gibson did their deals in a Planet Fitness parking
lot only because neither trusted the other enough to do the deals at one of their homes.
Yet another factor is whether the seller “often ‘fronts’ drugs” to the buyer. Id. Again
Bravo testified that the opposite was true here:
Q: Did he pay you up front or did you front him these drugs?
A: He pays me up front.
Q: He always pays you up front?
A: Yes.
Q: Why is that?
A: I didn’t have a, you know, good relationship with him to front him drugs.
In response to this point, the government points to Bravo’s second sale to Gibson, in
which Gibson inadvertently paid Bravo $2,500 less than the sale price. In a text exchange
immediately afterward, Bravo told Gibson that “I’ll get it from you” in their drug deal the next
morning. That the government cites that exchange as evidence of Bravo “fronting” drugs to
Gibson only underscores the weakness of its case. Nor is this exchange even arguably evidence
that Bravo “often” fronted drugs to Gibson. Id.
Deferential review is review nonetheless. Here, the government proved only a buyer-
seller relationship between Bravo and Gibson. The other relevant “factors”—per the testimony
of the government’s own witness, Bravo—affirmatively confirm as much. I would reverse
Gibson’s conspiracy conviction.