United States v. Charles Haywood Smith ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0094n.06
No. 22-5371
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Feb 16, 2023
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
ON APPEAL FROM THE UNITED
v. STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
CHARLES HAYWOOD SMITH, TENNESSEE
Defendant-Appellant.
OPINION
Before: SUTTON, Chief Judge; CLAY and BUSH, Circuit Judges.
CLAY, Circuit Judge. Defendant Charles Smith appeals his sentence of 96 months of
imprisonment for distributing and possessing with the intent to distribute heroin, in violation of
21 U.S.C. § 841(a)(1). On appeal, Smith claims the district court improperly attributed certain
drugs to Smith when calculating his Sentencing Guidelines range. For the reasons set forth below,
we AFFIRM the district court’s judgment.
BACKGROUND
Factual Background
Through a confidential source, the Metropolitan Nashville Police Department conducted
four controlled buys from Smith between July 17, 2019 and August 19, 2019. Through these four
controlled buys, officers purchased a total of 3.52 grams of heroin from Smith. Subsequently,
based on the controlled purchases, officers obtained a search warrant for Smith’s residence.
No. 22-5371, United States v. Smith
On August 21, 2019, officers executed the search warrant at Smith’s residence. During the
search, officers discovered four firearms, including three in Smith’s bedroom. Officers also
discovered the following suspected controlled substances: 82.08 grams of methamphetamine; 3.29
grams of heroin/fentanyl; 4.2 grams of heroin; a total of 3.6 grams of powder cocaine, which
included 2.3 grams found in Smith’s dresser and 1.3 grams found in the center console of Smith’s
vehicle; 2.5 grams of crack cocaine wrapped in foil in the bathroom; and 1.1 grams of marijuana.
Officers also discovered 360 dollars in small denominational bills in Smith’s bedroom, a black
digital scale inside the center console of Smith’s vehicle, and a digital scale in the bathroom.
While officers conducted the search, Smith was present, as were three other individuals:
Sandy Anderson (Smith’s mother), Charles Anderson (Smith’s stepfather), and Kreaja Spicer
(Smith’s child’s mother). Based on the discovery of controlled substances, officers issued citations
for simple possession to the three other individuals. Officers cited Kreaja Spicer for possession of
the 1.3 grams of powder cocaine found inside Smith’s vehicle, Charles Anderson for possession
of the 2.5 grams of crack cocaine found in the bathroom, and Sandy Anderson for possession of
the 1.1 grams of marijuana. After being advised of his Miranda rights, Smith admitted to the
officers conducting the search that “the contraband that was found was his.” Police Report, R. 27-
1, Page ID #95.
Officers field tested the 82.08 grams of methamphetamine, 3.29 grams of heroin/fentanyl,
3.6 grams of powder cocaine, and 2.5 grams of crack cocaine. Subsequently, officers submitted
these substances to the Metropolitan Nashville Police Department laboratory for testing. However,
the laboratory tested only the methamphetamine and the heroin/fentanyl. The laboratory tests
confirmed the presence of heroin/fentanyl but showed that the apparent methamphetamine did not
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No. 22-5371, United States v. Smith
contain a controlled substance. Officers conducted neither field nor laboratory tests on the 4.2
grams of apparent heroin.
Procedural Background
A federal grand jury indicted Smith on seven counts. Counts One through Four charge
Defendant with knowingly and intentionally distributing and possessing with the intent to
distribute heroin, in violation of 21 U.S.C. § 841(a)(1). These counts arise from the four controlled
buys. Count Five charges Defendant with knowingly and intentionally possessing with the intent
to distribute fentanyl and heroin, in violation of 21 U.S.C. § 841(a)(1), based on the heroin/fentanyl
discovered at his residence. Count Six charges Defendant with being a felon in possession of
firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924, based on the firearms discovered at his
residence. Count Seven charges Defendant with knowingly possessing a firearm in furtherance of
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
On August 23, 2021, Defendant pleaded guilty to Counts One through Four. The
government agreed to dismiss Counts Five, Six, and Seven. Following Defendant’s guilty plea,
the district court permitted Defendant to remain on pretrial release. A few months later, officers
with the Hendersonville Police Department arrested Smith in possession of 16.5 grams of crack
cocaine and 10 grams of marijuana. The district court subsequently ordered Defendant detained.
In preparation for sentencing, the U.S. Probation Office issued a Presentence Investigation
Report. The probation officer calculated the total converted drug weight attributable to Defendant
based on drugs recovered during the four controlled buys, some of the drugs recovered from the
search of Defendant’s residence, and the drugs recovered from the post-plea arrest. Specifically,
the probation officer included in the calculation the following drugs recovered from execution of
the search warrant: the 3.6 grams of powder cocaine; the 2.5 grams of crack cocaine; the 1.1 grams
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No. 22-5371, United States v. Smith
of marijuana; and the 3.29 grams of heroin/fentanyl. The probation officer omitted from the
calculation the 82.08 grams of the substance that field-tested as methamphetamine and the 4.2
grams of apparent heroin that was never tested. Based on the above, the probation officer
calculated a total converted drug weight of 80.32 kilograms. Based on this converted drug weight,
the probation officer calculated Defendant’s base offense level under the Sentencing Guidelines
to be 22.
Defendant made two objections to the presentence report. First, Defendant objected to the
probation officer’s calculation of the base offense level of 22 and contended that the base offense
level should instead be 20. Defendant argued that the converted drug weight should not include
the 3.6 grams of powder cocaine or the 2.5 grams of crack cocaine because the substances were
never tested by the laboratory. Second, Defendant objected to the lack of reduction for acceptance
of responsibility.
The district court overruled both of Defendant’s objections. First, the district court
determined that the probation officer accurately calculated the total converted drug weight in the
presentence report because a preponderance of the evidence supported the inclusion of the powder
and crack cocaine. The district court based its finding on the positive field tests showing the
substances were cocaine, the “officer description” of the substances, the packaging of the
substances, and on Defendant’s “criminal history of dealing drugs.” Sentencing Tr., R. 70, Page
ID #275–276. Therefore, based on that converted drug weight, the district court determined the
base offense level to be 22. Second, the district court determined that a reduction for acceptance
of responsibility was not appropriate because Defendant continued to engage in criminal conduct
while on pretrial release.
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No. 22-5371, United States v. Smith
Using the base offense level of 22, the district court calculated Defendant’s sentencing
Guidelines range to be 110 to 137 months. The district court varied downward from this range
and imposed a sentence of 96 months’ imprisonment. Before the conclusion of the sentencing
hearing, the sentencing judge asked the parties if they had any objections to the pronounced
sentence other than those that had already been raised. Defense counsel responded: “just the
objections to the calculations.” Sentencing Tr., R. 70, Page ID #314. Defendant timely appealed
from the district court’s judgment.
DISCUSSION
“For defendants convicted of drug crimes, the base offense level at sentencing depends
upon the amount of drugs involved in the offense.” United States v. Averill, 636 F. App’x 312,
315 (6th Cir. 2016) (citing U.S.S.G. § 2D1.1(c)); accord, e.g., United States v. Gill, 348 F.3d 147,
149 (6th Cir. 2003). This is because, under the advisory sentencing guidelines, a defendant's base
offense level is derived from his “relevant conduct,” as that term is defined in U.S.S.G. § 1B1.3.
Generally, if a sentencing court determines that a defendant’s relevant conduct for purposes of
sentencing includes drug quantities that are greater than those involved in the offense of
conviction, the court may calculate the defendant's base offense level using those higher drug
quantities. See, e.g., Gill, 348 F.3d at 149 (“A defendant is responsible for all drug quantities that
are included within the scope of his ‘relevant conduct.’”). Where a defendant is charged with
possessing drugs with the intent to distribute them, relevant conduct includes drugs the defendant
possessed with the intent to distribute, but not drugs the defendant possessed for personal
consumption. Id. at 153. “At sentencing, the prosecution bears the burden of proving by a
preponderance of the evidence the quantity of drugs involved in an offense.” United States v.
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No. 22-5371, United States v. Smith
Russell, 595 F.3d 633, 646 (6th Cir. 2010). We review the district court's factual determination of
the quantity of drugs involved in an offense for clear error. Id.On appeal, Defendant contends that the district court erred in attributing the crack and
powder cocaine to him because there was insufficient evidence to prove that the substances were
cocaine. For the first time, Defendant also contends that the district court erred because the
government did not show that Defendant possessed the crack cocaine, and because the government
did not show that Defendant possessed the crack or powder cocaine for distribution rather than for
personal consumption. Defendant argues that the sentencing judge’s failure to state affirmatively
that Defendant possessed the substances for the purpose of distribution rendered the sentencing
procedurally inadequate.1 On review of the record, the district court did not clearly err in
determining the drug quantity attributable to Defendant.
I. Presence of a Controlled Substance
Defendant asserts that the district court erred when it attributed the crack and powder
cocaine to him because the government failed to show that the substances were cocaine. Defendant
argues that the field tests showing the substances to be cocaine were, standing alone, insufficient
because field tests are fallible and can produce false positive test results. Further, Defendant argues
that the government failed to present sufficient circumstantial evidence to support the district
court’s finding that the substances were cocaine.
In analyzing whether the district court erred in finding that the substances Defendant
possessed were cocaine, this Court’s decision in United States v. Malone, 846 F. App’x 355, 361
1
In his reply brief, Defendant additionally argues that the district court erred by including the 1.1 grams of
marijuana in the total converted drug weight. Defendant forfeited this argument by failing to raise it in his
initial brief. United States v. Johnson, 440 F.3d 832, 845–846 (6th Cir. 2006). Moreover, Defendant
concedes any error was harmless.
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No. 22-5371, United States v. Smith
(6th Cir. 2021), is instructive. In Malone, the district court found that the substance the defendant
possessed was cocaine based on:
(i) a positive field test; (ii) testimony . . . that all five officers on the scene believed
the substance was cocaine; (iii) the fact that the powder was packaged in multiple
baggies—hidden inside a cigarette box—in a manner characteristic of drug
trafficking; (iv) crime-scene photos of the powder, packaging, and field test; (v) the
court’s factual determination that [the defendant] gave a ‘blatantly false’
explanation for the powder—that it was a numbing agent for his pulled tooth,
despite not being packaged in any commercial packaging—and (vi) the fact that
[the defendant] had previously been convicted of drug-trafficking offenses
involving cocaine.
Malone, 846 F. App’x at 361. The defendant objected to the district court’s reliance on the field
test because field tests are fallible. Id. On review, the Court noted that the government may
establish the identity of a drug through “cumulative circumstantial evidence” and need not present
scientific identification. Id. (citing United States v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988)).
Accordingly, the Court held that given the positive field test and the other corroborating factors,
the evidence sufficiently supported the district court’s finding that the substance the defendant
possessed was cocaine. Id.In this case, Defendant does not dispute that field tests showed that the substances were
cocaine. However, Defendant points to the false positive field test that showed that a substance at
the residence was methamphetamine, but which a laboratory test later showed contained no
controlled substances. Defendant argues that this provides a specific reason to doubt the field tests
used by the Metropolitan Nashville Police Department. However, as Defendant acknowledges,
field tests are fallible. The false positive result on one substance does not show that the district
could not rely, in part, on the other positive field tests administered on drugs seized during the
same search. See Malone, 846 F. App’x at 361.
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No. 22-5371, United States v. Smith
In addition to the field tests, the district court relied on the officer’s description of the
substance, the substances’ packaging, and Defendant’s criminal history. Regarding the officer’s
description of the substances, Defendant argues that this provides scant support for the
determination because the record does not show that the officers identified the substances as
cocaine for any reason other than the positive field tests, in contrast to Malone wherein the
government presented testimony regarding how officers identified the controlled substance. See
Malone, 846 F. App’x at 361. Though testimony about how officers identified the cocaine would
have provided more evidence in support of the district court’s finding, the description of the
substances as cocaine in the police report provides some evidence in support, because it indicates
that the authoring officer believed the substance to be cocaine.
Regarding the substances’ packaging, Defendant argues that the powder cocaine’s
packaging in separate bags does not necessarily show that that the substances were packaged for
resale rather than personal consumption. Regardless of whether for resale or personal
consumption, however, the substances’ packaging in baggies supports the district court’s finding
that they were cocaine. See Malone, 846 F. App’x at 361 (holding that the fact that the powder
was packaged in multiple baggies in a manner characteristic of drug trafficking supported the
district court’s determination that the powder was cocaine). As to the crack cocaine’s packaging
in foil, the government contends that foil is often used as packaging for crack cocaine prepared for
distribution, whereas Defendant contends that foil is often used for personal consumption of crack
cocaine. Regardless, the foil wrapping supports the district court’s finding that the substance
within the foil was crack cocaine.
As to Defendant’s criminal history, Defendant argues that it does not support the district
court’s finding that the substances were cocaine. Defendant points out he had only one conviction
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No. 22-5371, United States v. Smith
for drug trafficking, which was for marijuana, not cocaine. Defendant also notes he had nine
simple possession or casual exchange convictions, eight involving marijuana and only one
involving cocaine. However, though Defendant only had one prior conviction involving cocaine,
his history of drug-related arrests and convictions combined with his recent participation in four
controlled buy drug deals, and his arrest in possession of crack cocaine and marijuana while on
pretrial release, provides some evidence that the substances obtained from his residence and
vehicle were also controlled substances.
Considering the positive field tests for cocaine and the other corroborating factors,
including the officer’s description of the substances as cocaine in the police report, the packaging
of the substances in baggies and foil, and Defendant’s criminal history, the district court did not
clearly err in finding that the substances Defendant possessed were cocaine.2 Resisting this
conclusion, Defendant argues that the district court should have considered that Defendant was
“liable to possess substances that might mimic a controlled substance” based on Defendant’s
possession of a substance that appeared to be—but was not—methamphetamine. The possibility
that Defendant was selling fake drugs, suggested by the false positive field test result on the
apparent methamphetamine, does not rise to the level of creating in this Court a “definite and firm
conviction” that the district court erred, when compared to the evidence in the record supporting
the district court’s finding.
II. Other Arguments
On appeal, Defendant raises two new arguments in support of his contention that the district
court erred in attributing the crack and powder cocaine to him. First, Defendant argues that the
2
Defendant also argues that the government wrongly asserted to the district court that firearms were
“readily accessible” to defend the cocaine, as two of the three substances were not found in proximity to a
firearm. However, the district court did not rely on the substances’ proximity to firearms in finding the
substances were cocaine.
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No. 22-5371, United States v. Smith
district court erred in including the crack cocaine in the converted drug weight because the
government did not establish that Defendant possessed the crack cocaine. Second, Defendant
argues that the district court erred because the government did not establish that Defendant
possessed either the crack or powder cocaine with the intent to distribute it. Since Defendant
makes both these arguments for the first time on appeal, we review for plain error. United States
v. Southers, 866 F.3d 364, 366 (6th Cir. 2017); see also Fed. R. Crim. P. 52(b). To succeed on
plain-error review, Defendant must establish (1) there was an error (2) that was “clear or obvious”
and (3) that affected his “substantial rights.” Puckett v. United States, 556 U.S. 129, 135 (2009).
1. Possession
First, Defendant contends that he did not possess the crack cocaine. Defendant points to
the citation for possession of the 2.5 grams of crack cocaine issued to another individual at the
residence, Charles Anderson, and argues that this shows that the crack cocaine belonged to
Anderson, and not to Defendant. However, Defendant points to no authority suggesting that only
one person may be held responsible for a quantity of drugs. The citation issued to Charles
Anderson, alone, does not compel a conclusion contrary to the district court’s finding that the crack
cocaine was attributable to Defendant. Considering Defendant’s post-Miranda statement that the
contraband at the residence was his, and Defendant’s possession of a large quantity of crack
cocaine when he was arrested while on pretrial release, the district court did not plainly err in
attributing the crack cocaine to Defendant.
In addition, Defendant argues that the district court erred by not explicitly finding that
Defendant possessed the crack cocaine. However, absent an objection, “a sentencing court may
rely on undisputed facts that are recited in a presentence report to conclude that the defendant
committed acts offered as relevant conduct.” United States v. Shafer, 199 F.3d 826, 830 n. 1 (6th
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No. 22-5371, United States v. Smith
Cir. 1999); see also Fed. R. Crim. P. 32(i)(3)(A) (“At sentencing, the court may accept any
undisputed portion of the presentence report as a finding of fact.”). Defendant did not object to
the inclusion of the crack cocaine in the total converted drug weight in the presentence report on
the ground that Defendant did not possess the crack cocaine. Accordingly, the district court did
not err by accepting the inclusion of the crack cocaine in the total converted drug weight, as set
forth in the presentence report, and not specifically ruling on the possession issue.
2. Intent to Distribute
Second, in the alternative, Defendant argues that the district court erred in attributing the
crack and powder cocaine to him because he possessed the cocaine for personal consumption rather
than for distribution. A defendant bears the burden of production with respect to his personal use
of the drug in question. Gill, 348 F.3d at 156. The government must then rebut the evidence of
personal use, as the government bears the ultimate burden of persuasion. Id. Defendant did not
make this argument before the district court and did not produce any evidence to show that he
possessed the cocaine for personal use. Even looking past this procedural hurdle, Defendant has
not shown that the district court erred in attributing the cocaine to Defendant.
In support of his argument, Defendant notes that officers issued a citation to Anderson for
simple possession, and not distribution, of the 2.5 grams of crack cocaine. Defendant’s contention
that there is no evidence that Anderson possessed the crack cocaine for distribution is immaterial.
As determined above, the district court did not err in attributing the crack cocaine to Defendant,
despite the citation issued to Anderson. Accordingly, the relevant question is whether Defendant
possessed the crack cocaine for personal consumption.
On that question, Defendant argues that the crack cocaine’s wrapping in foil indicated it
was for personal consumption, as Defendant asserts that placing crack cocaine in foil is a common
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No. 22-5371, United States v. Smith
method for smoking it. Regarding the powder cocaine, Defendant contends that the 2.3 grams of
powder cocaine in the dresser and the 1.3 grams in the vehicle were possessed for personal
consumption and not for distribution. Defendant notes that the quantities are small. Further,
Defendant notes that officers cited another individual in the residence, Kreaja Spicer, for
possession of the powder cocaine in the vehicle. Based on these facts, Defendant argues that the
two quantities of powder cocaine were his and Spicer’s respective stashes of drugs for personal
consumption.
However, other evidence supports a finding that Defendant possessed the crack and powder
cocaine for distribution. For instance, the bag of powder cocaine in the center console of
Defendant’s vehicle was found in proximity to a digital scale, which is evidence of distribution.
See United States v. Hampton, 769 F. App’x 308, 311 (6th Cir. 2019) (holding sufficient evidence
supported the finding that the defendant possessed drugs for distribution in part based on the
presence of a digital scale in the vehicle with the drugs). In reporting his history of drug use,
Defendant reported “sprinkle[ing]” powder cocaine on his marijuana but did not report any use of
crack cocaine. PSR, R. 68, ¶ 78, Page ID #247. Finally, during his post-plea arrest, Defendant
possessed a large quantity of crack cocaine.
With no evidence of personal consumption presented by Defendant, and other evidence
that supported a finding that Defendant possessed the cocaine for distribution, the district court did
not plainly err by attributing the cocaine to Defendant. Further, as Defendant did not object on
this ground, the district court did not err in not ruling on the issue but instead accepting the
inclusion of the cocaine in the total converted drug weight, as set forth in the presentence report.
Shafer, 199 F.3d at 830 n. 1.
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No. 22-5371, United States v. Smith
CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment.
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