United States v. Mitchell , 295 F. App'x 799 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0605n.06
Filed: October 8, 2008
Nos. 07-1368, 07-1672
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DARRELL A. MITCHELL, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant, )
)
)
MARCUS LOFTON, )
)
Defendant-Appellant. )
Before: MARTIN, ROGERS, and SUTTON, Circuit Judges
SUTTON, Circuit Judge. Darrell Mitchell and Marcus Lofton appeal their sentences for
taking part in a multi-year drug-distribution conspiracy. We affirm.
I.
From at least 1998 to 2004, Mitchell, Lofton and a number of other individuals conspired to
buy and sell drugs in the Grand Rapids area. The conspiracy consisted of a largely decentralized web
of transactional relationships among the conspirators, ranging from steady streams of sales to
individual ad hoc purchases. Although they dabbled in other drugs, the conspirators focused on
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cocaine: A few of the conspirators regularly purchased large quantities of powder cocaine from
outside sources, then resold it to others within the conspiracy, who in turn resold it to other dealers
or end-users. Along the way, they converted (or “cook[ed]”) much of the powder into cocaine base
(crack). JA 297, 343–44, 355–57, 367.
A grand jury indicted Mitchell, Lofton and nine other coconspirators in 2003 and 2004,
ultimately charging Mitchell and Lofton with conspiracy both to possess with intent to distribute and
to distribute five kilograms of powder cocaine, 50 grams of crack cocaine and an unstated amount
of marijuana. Mitchell and Lofton pleaded guilty to the main conspiracy count.
After hearing a number of Mitchell’s coconspirators testify at his sentencing hearing, the
district court sentenced Mitchell to 360 months’ imprisonment. After holding a separate evidentiary
hearing concerning Lofton’s role in the conspiracy, the court sentenced Lofton to 240 months.
Mitchell and Lofton each appealed their sentences.
II.
Mitchell challenges the district court’s (1) calculation of the quantity of drugs for which he
should be held responsible and (2) enhancement for managing or supervising a conspiracy.
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A.
Mitchell argues that the district court treated a large portion of the powder cocaine he handled
as if it were crack cocaine without sufficient evidence and without articulating any specific
“conversion ratio.” Br. at 10. While it is debatable whether Mitchell raised this argument below,
we assume (without deciding) that he did preserve it, as it fails on the merits in any event.
Although the vast majority of the cocaine Mitchell sold to other coconspirators remained in
powder form at the time of the transactions, the district court properly treated at least some of that
powder as crack. The base-offense level for Mitchell’s conspiracy charge hinged on the aggregate
amounts of the various drugs attributable to his conduct, see U.S.S.G. § 2D1.1(a)(3), (c), requiring
the district court to “approximate the quantity of the controlled substance[s]” involved in his drug-
distribution activities, id. § 2D1.1 note 12. When making this calculation in the context of “jointly
undertaken criminal activity,” the guidelines require the district court to look beyond Mitchell’s own
actions and take account of “all reasonably foreseeable acts and omissions of others in furtherance”
of the conspirators’ operations. Id. § 1B1.3(a)(1)(B). And “it is appropriate to convert powdered
cocaine into cocaine base for sentencing purposes, if facts show that an object of the conspiracy was
to convert powder to crack.” United States v. Bingham, 81 F.3d 617, 628 (6th Cir. 1996). As the
district court properly recognized, the conspiracy’s primary objective was to make and distribute
crack cocaine, making Mitchell responsible for the reasonably foreseeable amounts of crack his
coconspirators made and distributed from the powder he sold them.
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Mitchell does not dispute the district court’s prerogative to treat powder as crack for
calculation purposes. He instead argues that the court did so in a slipshod way. Relying on the
Seventh Circuit’s decision in United States v. Stott, 245 F.3d 890 (7th Cir. 2001), Mitchell contends
that the district court counted nearly all of the powder as crack without adequately identifying which
portions of the powder that passed through his hands foreseeably became crack down the line and
without determining precisely how much crack each unit of the powder he sold yielded.
We disagree. In the first place, the district court based its determination of the amounts of
powder Mitchell’s customers converted to crack on adequate evidence presented at the sentencing
hearing. The government’s witnesses testified to the specific amounts of powder they each
purchased from Mitchell. And their accounts established that Mitchell knew each buyer was
transforming that powder into crack, and indeed in one instance Mitchell asked his primary supplier
how well his powder performed in the crack-cooking process.
Relying on this testimony and conservatively calculating the amounts involved in each
transaction, the district court found Mitchell responsible for 4.710 kilograms of powder, most of
which, it found, his customers converted to crack. Not every gram Mitchell sold, the court
acknowledged, “was necessarily turned into crack,” but the vast majority of it was, JA 436, and this
amount easily exceeded the threshold amount (1.5 kilograms) required to place Mitchell in the then-
highest base-offense bracket, see U.S.S.G. 2D1.1(c)(1); cf. Bingham, 81 F.3d at 625–28. Given the
evidence the government presented and the careful analysis the district court undertook, the court’s
work did not amount to “impermissible speculation” or “calculat[ing] drug amounts by guesswork.”
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Stott, 245 F.3d at 911–12 (internal quotation marks omitted); United States v. Chisholm, 73 F.3d
304, 308 (11th Cir. 1996).
In the second place, the district court adequately accounted for the amount of powder lost in
the cooking process. Even though Mitchell’s counsel frequently failed to raise the conversion-ratio
issue when cross-examining the government’s witnesses, the court itself asked several of Mitchell’s
customers about the amount of crack yielded from the purchased powder cocaine. All but one said
Mitchell’s powder produced an equal weight of crack, and the one testified that ten ounces of
Mitchell’s powder yielded “[n]ine, ten [ounces], something like that.” JA 353. The court
nonetheless discounted the entire crack quantity by 10% (from 4.710 kilograms to 4.239 kilograms)
to account for any weight lost. Far from being “random” and “arbitrary,” Br. at 12, the court’s ten-
to-nine conversion ratio gave Mitchell the benefit of the doubt.
B.
Also unavailing is Mitchell’s argument that the district court improperly applied a 3-level
enhancement for his role as a “manager or supervisor” in the conspiracy. U.S.S.G. § 3B1.1(b). To
qualify for a § 3B1.1(b) enhancement, Mitchell “must have been the . . . manager[] or supervisor of
one or more other participants.” U.S.S.G. § 3B1.1 note 2. The “participants” he managed or
supervised, importantly, need not have been convicted or even charged so long as they were “aware
of the criminal objective” and “knowingly offered their assistance.” United States v. Anthony, 280
F.3d 694, 698 (6th Cir. 2002). Coordinating even a single delivery of drugs via a courier suffices
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to constitute “management.” See United States v. Munoz, 233 F.3d 410, 416 (6th Cir. 2000); cf.
United States v. Rivera, 527 F.3d 891, 909 (9th Cir. 2008).
Mitchell’s activities fall within these requirements. Victoria Vinson, Mitchell’s girlfriend,
delivered drugs to others several times at Mitchell’s request. Mitchell also sent others (including
Lofton) to make deliveries for him and on at least one occasion arranged for buyers to pick up drugs
from his own brother. In responding that he never “controlled” or “coerc[ed]” anyone’s assistance
in his drug-trafficking endeavors, Br. at 13–14, Mitchell misapprehends the § 3B1.1(b) standard.
“Such control or authority over others [that] is required to impose the four-level enhancement under
[§] 3B1.1(a)”—which the government sought here but the district court declined to impose—“is
precisely what distinguishes a leader or an organizer under § 3B1.1(a) from a manager or supervisor
under § 3B1.1(b),” Rivera, 527 F.3d at 908 (internal quotation marks omitted); cf. U.S.S.G. § 3B1.1
note 4.
III.
Lofton argues that the district court (1) made several mistakes in calculating his drug
quantities, (2) improperly credited perjured testimony, (3) failed to consider one of his arguments
and (4) gave disproportionate weight to his criminal history.
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A.
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In challenging the court’s drug-quantity calculation, Lofton points to three alleged mistakes:
it counted as crack 4.5 ounces of powder that Lofton helped another coconspirator purchase; it
attributed 765.45 grams of powder to him without any support in the record; and it erred in
translating Lofton’s powder cocaine total into equivalent units of marijuana.
Because Lofton did not preserve these objections in the district court, we review his
contention only for plain error, see United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en
banc), which is fatal to his claim. As Lofton concedes, all three errors taken together made no
difference to his guidelines range. That concession by itself establishes that the alleged errors were
harmless. See United States v. Charles, 138 F.3d 257, 268 (6th Cir. 1998); United States v.
Hettinger, 242 F. App’x 287, 296 (6th Cir. June 18, 2007). And that concession necessarily shows
that he cannot meet the requirements of plain-error review because it precludes him from showing
that the alleged errors affected the outcome of the sentencing proceeding. See United States v.
Barnett, 398 F.3d 516, 526 (6th Cir. 2005); see also United States v. Olano, 507 U.S. 725, 734
(1993) (in establishing plain error, unlike harmless error, “[i]t is the defendant rather than the
Government who bears the burden of persuasion with respect to prejudice”). All Lofton offers is his
own conjecture that a lower drug-quantity finding “could certainly have affected the court’s decision
on sentencing.” Br. at 9. Perhaps. But it is just as plausible that correcting the alleged mistakes
would not have affected his sentence, based as it was on the court’s “conservative” drug-quantity
estimates, which were far below those recommended by the presentence investigation report. JA
626. “Where the effect of an alleged error is so uncertain, a defendant cannot meet his burden of
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showing that the error actually affected his substantial rights.” Jones v. United States, 527 U.S. 373,
394–95 (1999).
B.
Lofton next argues that the district court relied on the perjured testimony of three
witnesses—Jermaine McGhee, Kengie Gates and Howard Mayfield. McGhee testified that he
purchased 4.5 ounces of crack from Lofton three or more times beginning in 1997. But that was not
credible, Lofton argues, because McGhee told a grand jury in 2004 that he bought only powder from
Lofton. That grand-jury testimony is not in the record, but as McGhee explained at Lofton’s
sentencing, he initially purchased crack from Lofton but then switched to powder because Lofton’s
crack contained too much cutting agent, a story that appears consistent with the portions of
McGhee’s grand-jury testimony read aloud at Lofton’s sentencing. Similarly, McGhee’s various
accounts of the amounts of powder he purchased from Lofton, though not identical, hardly present
the kinds of “clear[]” inconsistencies that compel us to cast aside the district court’s credibility
assessment. United States v. Roche, 321 F.3d 607, 611 (6th Cir. 2003).
Lofton’s attack on Gates’ credibility meets the same fate. Lofton tried to impeach Gates’
statement that he sold powder to Lofton in 2003 with prior plea-hearing testimony to the effect that
he sold “drugs” only to a single person, Lorenzo Webb, identified on a list of names given to him.
JA 536–37. But the impeachment effort at sentencing lost momentum when Gates himself, after
being shown a transcript of his prior testimony, observed that it was unclear (at least from the
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transcript) what list he had been looking at, and when he clarified that Webb was the only person to
whom he had sold crack. On this record, the district court could have disbelieved Gates’ version of
events, but its decision to credit his testimony was not so obviously mistaken as to warrant displacing
its judgment with our own.
The same is true of Mayfield’s credibility. Lofton noted that his presentence investigation
report indicated that Mayfield told investigators he regularly purchased crack from Lofton in the
second half of 2003 (during part of which he was in custody), undercutting his testimony at Lofton’s
sentencing that he bought crack from Lofton in 2002. Mayfield insisted that the report was mistaken,
and the prosecutor told the court that Mayfield had raised the same issue the first time he saw the
report in a prior meeting with investigators. Here again, the district court did not have to believe
Mayfield—indeed, it did not credit his testimony on a different issue in a prior proceeding—but
Lofton has identified no clear error in crediting his testimony on these issues.
C.
Lofton next contends that the district court committed procedural error by failing adequately
to consider his argument that it should vary from the 100:1 crack-powder ratio embodied in the
guidelines. As a threshold matter, Lofton passed up the most obvious opportunity to object to the
inadequate attention the district court gave his argument: When given the chance at the end of the
sentencing to raise any objections, Lofton’s counsel neither indicated that the court had failed to
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address his crack-powder-disparity argument nor asked for further explanation. As a result, Lofton
faces plain-error review. See Vonner, 516 F.3d at 386.
Lofton, to begin with, overstates the district court’s obligation to address his argument in
detail. District courts need not explicitly address every argument a defendant raises at sentencing.
See United States v. Smith, 510 F.3d 603, 608 (6th Cir. 2007). They retain considerable latitude in
deciding which arguments to discuss and how much explanation is necessary. So long as “[t]he
record makes clear that the sentencing judge listened to each argument,” “considered the supporting
evidence,” was “fully aware” of the defendant’s circumstances and “took them into account” in
sentencing him, the sentencing court has done its duty. Rita v. United States, __ U.S. __, 127 S. Ct.
2456, 2469 (2007).
As the record reflects, the district court fulfilled its obligation to consider Lofton’s argument
that the 100:1 ratio should not apply in his case. After noting that it had read Lofton’s sentencing
memorandum in which he raised this argument, the court went on to reject it at the hearing,
explaining that the 100:1 ratio reflected a policy judgment about the violence associated with crack,
that the ratio had been applied to Lofton’s coconspirators and that the court had been given “no
reason not to [apply] it here.” JA 621. At the same time, the court expressly acknowledged its
authority to vary from the advisory guidelines’ recommended range. No plain error occurred.
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D.
Lofton next argues that in imposing his sentence, the district court gave disproportionate
weight to his prior convictions. The district court calculated Lofton’s criminal-history score to be
15 points, placing him in Category VI. Lofton did not object to this calculation, but he did argue that
the district court should depart downward to criminal-history Category V (as the presentence report
recommended) on the ground that a substantial number of Lofton’s points (seven of his twelve prior-
conviction points) arose from convictions for driving with a suspended (or expired) license, which
Lofton said “over-represent[ed] the likelihood of recidivism,” JA 473. Although he concedes that
the guidelines calculations in this respect were accurate, he maintains that the resulting sentence was
unreasonable. While we do not generally review a district court’s decision not to grant a downward
departure where the district court appreciated its discretion to do so, we do assess the reasonableness
of the resulting sentence. See United States v. Heath, 525 F.3d 451, 459 (6th Cir. 2008). And
because Lofton’s 240-month sentence fell within the advisory guidelines range, it is entitled on
appeal to a presumption of reasonableness. See United States v. Duane, 533 F.3d 441, 453 (6th Cir.
2008).
Lofton offers nothing meaningful to rebut that presumption. Nor does the record suggest the
district court abused its discretion in determining his final sentence. The court took account of the
serious nature of the drug-trafficking conspiracy and Lofton’s role in it, the need for adequate
punishment and the need to avoid serious sentencing disparities with other similar defendants. And
with respect to Lofton’s criminal history (which the district court described as “outrageous,” JA
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611), the court noted that although a number of his prior convictions were for driving-license-related
offenses, he had several other convictions that resulted in no points—to say nothing of a number of
other charges that were dismissed in exchange for guilty pleas. These prior convictions, the court
noted, “show a scofflaw attitude,” as they reflect “repeated violations of the same nature, which are
the easiest ones to change.” JA 613. Lofton gives us no reason to reject this conclusion or any other
aspect of the district court’s assessment, and in the end “we simply cannot say that [his] special
circumstances are special enough that, in light of § 3553(a), they require a sentence lower than the
sentence the Guidelines provide.” Rita, 127 S. Ct. at 2470.
IV.
For these reasons, we affirm.
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