United States v. Salena Kolarich ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0081p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
│
v. > Nos. 20-1118 /1170 /1260 /1265
│ /1266 /1272
│
DONALD BERNARD GARDNER (20-1118); │
MARTINELLUS NIX (20-1170); RYAN RASHAD │
BROWN (20-1260); DOUGLAS EMMANUEL CAREY, │
III, (20-1265); MARVIN QUANTEZ NIX (20-1266); │
SALENA E. KOLARICH (20-1272), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:18-cr-00167-8—Paul Lewis Maloney, District Judge.
Argued: October 21, 2021
Decided and Filed: April 25, 2022
Before: McKEAGUE, NALBANDIAN, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Mary Chartier, CHARTIER & NYAMFUKUDZA, P.L.C., Okemos, Michigan, for
Appellant in 20-1265. Daniel T. McGraw, UNITED STATES ATTORNEY’S OFFICE, Grand
Rapids, Michigan, for Appellee. ON BRIEF: Mary Chartier, CHARTIER &
NYAMFUKUDZA, P.L.C., Okemos, Michigan, for Appellant in 20-1265. Michael J. Manning,
MANNINGLAW, Escanaba, Michigan, for Appellant in 20-1118. Lawrence J. Phelan, Walker,
Michigan, for Appellant in 20-1170. John M. Karafa, GRAVIS LAW, PLLC, Muskegon,
Michigan, for Appellant in 20-1260. Daniel R. Fagan, DANIEL R. FAGAN & ASSOCIATES,
P.C., Grand Rapids, Michigan, for Appellant in 20-1266. Mark Louis Dobias, MARK L.
DOBIAS, P.C., Sault Ste. Marie, Michigan, for Appellant in 20-1272. Daniel T. McGraw, Kate
Zell, Kathryn Dalzell, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellee.
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_________________
OPINION
_________________
NALBANDIAN, Circuit Judge. This case is about a drug-trafficking conspiracy that
distributed more than 100 kilograms of powder and crack cocaine in Southwest Michigan from
2017 to 2018. The conspiracy involved dozens of actors across the states of Michigan, Texas,
and Arkansas. But only eight members of the operation play a relevant role here. The first,
Howard Mayfield, served as the Grand Rapids-based ringleader of the drug-trafficking
organization. The second, Wilbert Gentry, supplied Mayfield from Houston, Texas, with
kilogram quantities of cocaine. The next six players—Donald Gardner, Martinellus Nix, Ryan
Brown, Douglas Emmanuel Carey, Marvin Nix, and Salena Kolarich—acted as money couriers,
wholesale distributors, and street-level dealers in the Grand Rapids area.
Federal prosecutors indicted a grand total of 27 coconspirators in 2018. And all were
convicted for their various roles in the conspiracy. These appeals are brought by six of those
coconspirators—Gardner, Brown, Carey, Kolarich, Marvin Nix, and Martinellus Nix. Together,
their consolidated appeals present 17 issues, ranging from the denial of their motions to suppress
wiretap evidence to sentencing errors. We take each in turn, affirming the district court on all
but one issue.
I.
The Investigation. Howard Mayfield ran a drug-trafficking organization out of Grand
Rapids, Michigan. His operation dealt powder and crack cocaine in and around the area. Wilbert
Gentry, an old cellmate of Mayfield’s, supplied the organization with cocaine from his base in
Houston, Texas. Starting in the spring of 2017, Mayfield received around five kilograms of
cocaine from Gentry each month. Sometimes the amount varied—once Mayfield received
15 kilograms from Gentry. Sometimes Gentry supplied Mayfield more than once a month. And
sometimes Mayfield met Gentry in Houston to exchange cocaine and payment, although other
times he met one of Gentry’s couriers in Arkansas. All in all, Mayfield’s operation managed to
move hundreds of kilograms of cocaine in 2017 and 2018.
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But Mayfield’s drug-trafficking ring wasn’t the only clandestine operation in town.
Agents at the Drug Enforcement Agency (DEA) caught wind of Mayfield’s organization right
before Gentry entered the picture. They launched an investigation soon after, partnering with
law enforcement agencies across the country to slowly piece together a picture of the operation.
Together, the agencies used many traditional techniques—including confidential sources,
controlled buys, phone record analysis, and physical surveillance—to gather information. And
they had some success. Investigators, for instance, learned the identities of people associated
with Mayfield, gathered physical evidence that Mayfield dealt cocaine, and knew the identity of
Gentry.
But after a year of work, the investigation stalled. Confidential sources dried up.
Physical surveillance couldn’t follow suspects into apartment buildings. And toll record and pen
register requests struggled to keep pace with rotating burner phones. So despite some initial
success, investigators still missed key pieces of the puzzle. True, they had identified a few
suspects close to Mayfield. But they didn’t know the scope of the suspects’ roles or if they even
worked for the operation in the first place. In short, investigators had enough evidence to
prosecute Mayfield and Gentry, but not enough to dismantle the whole organization.
So on March 13, 2018, investigators sought authorization to wiretap one of Mayfield’s
phones (Target Phone 1). In support, they filed an 87-page affidavit that described how
Mayfield used the phone, why interception was necessary, and what techniques had been “tried
and [had] failed to fully achieve the goals and objectives of [the] investigation.” (R. 2, pp. 79–
99.) The district court signed an order authorizing interception for an initial 30-day period that
same day. About a month later, the district court signed an order for another 30-day wiretap on
the same phone. But soon after, investigators realized Mayfield had started to use a new phone
(Target Phone 2) to communicate with his cocaine suppliers and distributors. So they put in an
application to tap that phone too, which the district court approved on May 1, 2018.
The wiretaps served their purpose. Investigators paired intercepted communications with
continued physical and electronic surveillance. Together, the evidence painted a detailed picture
of Mayfield’s organization. This picture revealed the scope of each coconspirators’ role. Brown
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and Gardner served as retail distributors of cocaine for Mayfield. Both communicated with
Mayfield about shipments, suppliers, and deals. Carey and the Nix cousins, for their parts, filled
out the roster as street-level dealers. And Kolarich, Gentry’s girlfriend, collected $50,000 in
cash cocaine proceeds from Mayfield in a parking-lot exchange. She personally transported
some of the money to Gentry and asked friends to help her wire the rest.
Armed with the wiretap evidence, investigators launched a coordinated takedown on May
24, 2018. That day, they arrested and charged 15 members of Mayfield’s operation—including
Mayfield, Gardner, Gentry, and Brown. Soon after, the grand jury indicted 27 defendants,
including Martinellus Nix, Marvin Nix, Carey, and Kolarich, with conspiracy to distribute and
possess cocaine, along with substantive counts for each of the defendants’ drug-related activities.
All but four of the 27 defendants pleaded guilty. Gardner took this path, pleading guilty
to conspiring to distribute and possess with the intent to distribute cocaine or cocaine base.
Martinellus Nix did the same, pleading guilty to possession with intent to distribute cocaine. The
other four defendants—Brown, Carey, Marvin Nix, and Salena Kolarich—proceeded to trial.
Trial and Sentencing Proceedings. At trial, the government introduced testimony from
many witnesses. Investigators testified about their participation in the takedown of the drug-
trafficking ring. Expert witnesses explained the code words and street slang used in intercepted
calls and texts. Voice-identification witnesses identified the defendants’ voices on intercepted
calls. And cooperating codefendants, like Gentry, gave in-depth descriptions of the
organization’s operations. The government’s evidence also included drugs bought from
Mayfield, intercepted cocaine, bank records, phone records, residency records, and electronic
evidence from GPS tracking devices. The real star of the show, though, was the wiretap
evidence. The government played intercepted phone calls between Mayfield and each of the
defendants. It also introduced pages of text messages that discussed drug dealing, cocaine
shipments, and cocaine-supply issues.
In the end, the jury convicted all four defendants. Each was convicted on the cocaine
conspiracy charge. The jury also convicted Brown, Carey, and Marvin Nix of separate counts of
possession with intent to distribute cocaine or cocaine base. And it convicted Kolarich for
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unlawful use of a communication facility to enable the cocaine conspiracy, along with interstate
travel to distribute the conspiracy’s drug proceeds.
The district court then sentenced Gardner to 168 months, Martinellus Nix to 120 months,
Marvin Nix to 96 months, Carey to 150 months, Brown to 204 months, and Kolarich to 60
months’ imprisonment.
All six defendants appealed, raising 17 issues in total. We address their arguments in
three parts. First, we consider the district court’s denial of the defendants’ motion to suppress
the wiretap evidence. Next, we turn to evidence issues from the trial. Last, we take up the
defendants’ sentencing challenges.
II.
The standard of review for a district court’s denial of a motion to suppress is familiar.
We review findings of fact for clear error and questions of law de novo. United States v. Young,
847 F.3d 328, 342 (6th Cir. 2017). But in cases about motions to suppress wiretap evidence,
there’s a twist. This is because we consider the orders of two different district court judges:
(1) the issuing district court judge, who authorizes the government’s use of wiretaps in the first
place; and (2) the reviewing district court judge, who either grants or denies a defendant’s motion
to suppress the wiretap evidence.
The distinction between the issuing and the reviewing district court judge is key to this
appeal. All the defendants, except Kolarich, challenge the district court’s denial of the motion to
suppress evidence from the three wiretap applications. But they do so for two distinct reasons.
First, each defendant makes the same substantive challenge: They believe the government failed
to meet the Title III necessity requirement for wiretaps. This argument attacks the issuing
district court’s determination that the government satisfied that requirement. Second, only one
of the defendants, Martinellus Nix, makes a procedural challenge. He argues the reviewing
district court abused its discretion when it considered only two of the three wiretap applications.
We review the substantive challenge with fresh eyes and ask if the issuing district court
abused its discretion when it authorized the wiretaps. United States v. Wright, 635 F. App’x 162,
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165 (6th Cir. 2015); see also United States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000) (noting
that we “accord ‘great deference’ to the determinations of the issuing judge” (quotation
omitted)). As for the procedural challenge, Martinellus Nix failed to raise his argument below.
So we review for plain error. United States v. Bass, 785 F.3d 1043, 1049 (6th Cir. 2015).
Substantive Challenge. Before the government can wiretap a suspect’s phone, it must
satisfy Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–
2520. Title III imposes a heightened warrant requirement for government wiretaps. Not only
must the government show probable cause, see 18 U.S.C. § 2518(3), but it also must satisfy the
“statutory ‘necessity requirement.’” United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002)
(quoting United States v. Alfano, 838 F.3d 158, 163 (6th Cir. 1988)). The necessity requirement
mandates that every wiretap application 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).
Typically, we affirm an issuing judge’s necessity finding when a wiretap application
meets three criteria. First, the government can’t use a wiretap as “the initial step.” United States
v. Landmesser, 553 F.2d 17, 20 (6th Cir. 1977) (quoting United States v. Giordano, 416 U.S.
505, 515 (1974)). Second, investigators shouldn’t resort to wiretapping in circumstances “where
traditional investigative techniques would suffice to expose the crime.” Id. at 19–20 (quoting
United States v. Kahn, 415 U.S. 143, 153 (1974)). Third, although officials may rely on “prior
experience,” they must apply those experiences to the “particular facts of the case at hand[.]” Id.
at 20. As explained below, the wiretap applications here meet all three criteria.
1. Initial Step. Investigators didn’t use wiretaps as an initial, or even an intermediate,
step. Instead, they spent more than a year diligently using traditional techniques. Still, after a
full year of working with confidential sources, executing controlled buys, using pen registers and
toll records, installing GPS tracking devices, engaging in physical surveillance, and watching
pole camera footage, the government lacked key pieces of the drug-trafficking puzzle. To be
sure, these techniques established the existence of Mayfield’s organization, identified Gentry as a
cocaine supplier, and found new target subjects. But investigators wanted to discover enough
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evidence to dismantle the entire organization and “fully prosecute all members,” not just arrest a
few participants. In a litany of cases, this Court has affirmed the use of wiretaps in similar
circumstances.1 This is because “nothing requires the government to call off its investigation
after it achieves only some of its goals.” United States v. Castro, 960 F.3d 857, 864 (6th Cir.
2020). Here, investigators waited an appropriate time, one year, to apply for wiretaps that
fulfilled an appropriate goal, taking down the whole drug-trafficking ring. So the wiretap
requests were far from an initial step.
A few defendants disagree. In his brief, Carey argues “[t]here was a rush to get access to
phones instead of pursuing the investigation through more conventional means . . . .” (Carey Br.
at 3.) Gardner makes a similar argument. The record doesn’t support their position.
Investigators didn’t rush or jump to wiretapping. Instead, they applied for wiretaps after a year
of using traditional tools.
Two defendants, Brown and Marvin Nix, make a more nuanced argument. They contend
that the wiretaps counted as an initial step against them. In their view, Title III requires the
government to use traditional investigative techniques against each suspect before resorting to
wiretapping. But Brown and Marvin Nix aren’t the first defendants to make these kinds of
arguments. In United States v. Jenkins, the defendants similarly claimed “investigators were
required to pursue traditional methods of investigation into the activities of all named
interceptees in each wiretap application.” 659 F. App’x at 335. But we rejected this argument,
pointing out that the defendants cited “no authority holding the government is required to
exhaust traditional methods of investigation into all possible members of a conspiracy before
applying for a wiretap.” Id.1
See Young, 847 F.3d at 345 (rejecting the defendant’s argument that some objectives, like arresting certain
members, could have been met without wiretapping when the investigation’s main objective was dismantling the
entire operation); Stewart, 306 F.3d at 304–06 (same); United States v. Gonzalez, 849 F. App’x 557, 562–63 (6th
Cir. 2021) (finding use of a wiretap appropriate when the government wanted to understand the scope of a drug-
trafficking conspiracy and identify every member); United States v. Jenkins, 659 F. App’x 327, 335 (6th Cir. 2016)
(same). On a similar note, we’ve also recognized that “wiretapping is particularly appropriate” in narcotics
conspiracy investigations because “the telephone is routinely relied on to conduct the criminal enterprise.” Stewart,
306 F.3d at 305 (quoting Landmesser, 553 F.2d at 20).
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The same holds true here. In this case, investigators exhausted traditional investigative
tools without gathering enough evidence to dismantle the organization. And it applied for a
wiretap to “identify[] other key personnel.” (R. 2, p. 196.) That it did so successfully does not
mean it impermissibly used wiretaps as an initial step against newly identified members.
2. Use of Traditional Techniques. Title III’s necessity requirement ensures that
investigators don’t resort to wiretapping in circumstances “where traditional investigative
techniques would suffice to expose the crime.” Landmesser, 553 F.2d at 19–20 (citation
omitted). To satisfy the requirement, though, investigators “need not prove the impossibility of
other means of obtaining information.” Stewart, 306 F.3d at 305. Instead, the government need
only “give serious consideration to the non-wiretap techniques” so “that the court [is] informed
of the reasons . . . non-wiretap techniques have been or will likely be inadequate.” Alfano,
838 F.2d at 163–64 (quoting United States v. Lambert, 771 F.2d 83, 91 (6th Cir. 1985)).
That’s exactly what the government did here. In each of the three wiretap applications,
investigators’ supporting affidavits described why traditional “investigative procedures have
been tried and failed,” appeared “unlikely to succeed,” or seemed “too dangerous.” See
18 U.S.C. § 2518(1)(c). The level of detail showed officers didn’t resort to wiretapping where
traditional techniques would have sufficed. Each affidavit listed the traditional techniques
investigators had tried before and explained why those techniques wouldn’t reveal the scope of
the entire drug-trafficking conspiracy. Each incorporated new information into its investigative
history. And each described why investigators still needed wiretap evidence. All in all, the three
affidavits showed the government “g[ave] serious consideration to the non-wiretap techniques.”
Alfano, 838 F.2d at 163–64 (internal quotation omitted).
The defendants make several counterpoints, none convincing. Three argue that the
government’s initial success with traditional techniques and “fail[ure] to pursue additional viable
[methods]” “obviated the need for wiretaps.” (Gardner Br. at 39, 41; see also Brown Br. at 19;
Marvin Nix Br. at 13.) Gardner, for example, focuses on warrants. He contends that the
government should have used search warrants “before seeking further wiretaps like the tap of
Phone 2.” (Id. at 32.) But this argument ignores the reality that search warrants would have
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exposed the covert operation. True, the government used residential search warrants “just three
weeks after” it received authorization to tap Target Phone 2. (Id.) But it executed those warrants
at the end of the investigation. Besides, this Court has never held the government must try
traditional techniques that would “alert other members of the conspiracy of the investigation.”
Gonzalez, 849 F. App’x at 562; see also Wright, 635 F. App’x at 167.
For his part, Martinellus Nix attacks the third wiretap application. He argues that the
government presented insufficient new information to “justify” that last tap into Target Phone 2.
(See Martinellus Nix Br. at 22–23.) Gardner makes an adjacent argument. He asserts that the
second and third wiretap applications didn’t “differ remarkably” from the first. (Gardner Br. at
27.)
Two points in response. First, the defendants ignore the reams of fresh evidence the
government presented in the second two applications. Second, when an investigation merits
multiple wiretaps, a later application often will resemble an earlier one. After all, “the
surveillance techniques” found inadequate during one part of the investigation will often be futile
for “similar reasons” later. United States v. Sims, 508 F. App’x 452, 459 (6th Cir. 2012); see
also Corrado, 227 F.3d at 539 (rejecting the defendants’ assertion that further electronic
surveillance was unwarranted because the government had gathered a “large quantum of
evidence” and had other “available investigative techniques” at its disposal).
3. Case-Specific Support. Last, we consider the use of case-specific support.
Investigators may rely on “prior experience” to explain why traditional techniques appear
unlikely to succeed or seem too dangerous. Landmesser, 553 F.2d at 20. But they must relate
those experiences to the particular facts of the investigation at hand. See Wright, 635 F. App’x at
167. This means that an affidavit may “rest[] in part on statements equally applicable” to similar
investigations as long as it ties those statements to case-specific examples. Landmesser,
553 F.2d at 20 (citation omitted). Without those examples, an affidavit falls short of the
necessity mark. See, e.g., United States v. Rice, 478 F.3d 704, 711 (6th Cir. 2007) (affirming the
suppression of wiretap evidence where the affidavit contained generalized, uncorroborated
information about necessity and no case-specific support).
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Here, the three affidavits pass the test. Although each affidavit contains a few general
conclusions, specific examples provide support along the way. For instance, the first affidavit
makes general assertations about the limitations of physical surveillance. But it doesn’t leave it
at that. Instead, it follows with specific examples of why those limitations proved true in the
investigation of Mayfield’s organization. This pattern repeats itself in each affidavit and for
every traditional technique.
The defendants disagree. They argue the wiretap affidavits relied on generalized,
boilerplate conclusions that apply to “all drug-trafficking-organization investigations.” (Gardner
Br. at 29–30.) And in their view, these “boilerplate” recitations render the wiretap applications
inadequate. (Carey Br. at 46–47; see also Brown Br. at 9; Marvin Nix Br. at 13.)
But each boilerplate argument suffers from one of three analytical flaws. First, the
defendants fail to contend with the case-specific support included in each wiretap affidavit.
Second, they overstate the Title III requirement. Third, they rely on inapposite precedent.
Start with the failure to contend with case-specific support. Defendants point to an
example of a generalized conclusion, cry “boilerplate,” and rest their case. But their analysis
ignores the detailed, case-specific information that follows most references to the investigator’s
experience. Take Gardner’s brief. He asserts that the government’s discussion of physical
surveillance, confidential sources, and trash pulls rest on the same “boilerplate conclusions.”
(Gardner Br. at 29, 30, 35–36, 40.) But for each technique, the affidavits tell a different story. In
fact, each affidavit provides pages of analysis explaining why, in this specific case, physical
surveillance, confidential sources, and trash pulls didn’t work or proved too risky.
Next, defendant’s overstate Title III’s requirement. For instance, Gardner recognizes the
government made some “assertions specific to the investigation.” (Gardner Br. at 36.) Still, he
believes the fact that “one [could] make similar assertions in most multi-defendant drug cases”
negates necessity even in the presence of case-specific support. (Id.) But Title III doesn’t
require investigators to show why one drug investigation is unique or distinguishable from all
others. Rather, it tells the government to prove why, in that specific case, certain traditional
techniques have “been tried or failed” or appeared “unlikely to succeed.” See 18 U.S.C.
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§ 2518(1)(c); see also United States v. Wren, 528 F. App’x 500, 504–05 (6th Cir. 2013)
(explaining that the affidavit, when read as a whole, supported a necessity finding even though it
included some language that could apply to most narcotics investigation). And in all three
applications, the government did just that.
One last note. Defendants compare this case to United State v. Rice, one of our
precedents, and United States v. Blackmon, a Ninth Circuit case. Neither is on point. In Rice,
the district court determined that the affidavit contained “misleading” and “reckless” statements.
478 F.3d at 707–09. It found that without the misleading statements, only “uncorroborated
thoughts and opinions” remained. Id. at 709. This meant the affidavit provided “no evidence that
any other investigative technique was . . . seriously considered.” Id. So it suppressed the
evidence. We agreed with its analysis and affirmed. Id. at 710. In Blackmon, the Ninth Circuit
made a similar move. 273 F.3d 1204 (9th Cir. 2001). It found the wiretap application contained
“material omissions” and “generalized statements that would be true of any narcotics
investigations.” Id. at 1208. Without “specific facts,” the Ninth Circuit held that “boilerplate
conclusions” alone could not justify necessity. Id. at 1208–10.
This case is not like Rice or Blackmon. Defendants don’t allege that the affidavits
contain misleading or false statements. Nor do they identify material omissions. What’s more,
investigators identified multiple case-specific “examples of actual investigative techniques that
had already been used” and would serve “limited value going forward.” See Sims, 508 F. App’x
at 457 (distinguishing Rice).
***
In sum, each wiretap application met Title III’s necessity standard. The investigators
didn’t use the wiretaps as an initial step. They provided detailed explanations as to why
traditional investigative techniques failed to expose the entire scope of the drug-trafficking
enterprise. And they gave fresh, case-specific examples in each application. For these reasons,
we affirm the issuing district court judge’s finding of necessity for all three wiretaps and the
reviewing district court judge’s denial of the motion to suppress.
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Procedural Challenge. Only one of the defendants, Martinellus Nix, makes a procedural
challenge. He claims that the reviewing district court erred when it considered the first two
wiretap applications in its denial order, but not the third. Failure to explicitly consider the third
application, Nix asserts, qualifies as an abuse of discretion. And given the lack of evidence
“implicating him on the first two wiretaps,” Nix believes this omission “prejudiced” him and
mandates reversal. (Martinellus Nix Br. at 13.) Nix is right about one thing. Although the
district court’s order explains why the first and second wiretap applications satisfied the
necessity requirement, the third application goes unmentioned.
Still, we need not reach his procedural challenge. We review the issuing judge’s
necessity finding for each wiretap application with fresh eyes. Wright, 653 F. App’x 165. This
means we ask the same question the reviewing judge did below: Did the issuing judge abuse his
discretion when he found each of the wiretap applications established the requisite necessity?
Our answer for the third application? No. The third application, like the first two,
satisfied Title III’s necessity requirement. So even if the reviewing district court erred in
omitting the last application, we decline to remand the issue just so it might receive another look.
Put another way, our answer to the substantive question in this case—whether the third wiretap
application satisfied the necessity requirement—precludes our need to consider the procedural
one. Accord United States v. Rodriguez, 851 F.3d 931, 939 (9th Cir. 2017) (declining to remand
the wiretap issue, despite a district court’s procedural error, because it conducted the same
necessity inquiry on appeal).
III.
Carey, Brown, Marvin Nix, and Kolarich make various challenges to the evidence
presented at trial. Some attack the admission of expert testimony. Others dispute the sufficiency
of the evidence to give jury instructions or convict. We address the issues one by one.
Agent Burns’s Daubert Hearing. Carey claims that the district court erred when it denied
his Daubert hearing motion for one of the government's expert witnesses, DEA Agent Thomas
Burns. We review a district court’s decision to admit or exclude expert testimony for abuse of
discretion. In re Scrap Metal Antitrust Litigation, 527 F.3d 517, 528 (6th Cir. 2008). But even if
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we find such abuse, we won’t reverse unless the error affected a party’s substantial rights.
United States v. White, 492 F.3d 380, 398 (6th Cir. 2007).
Carey’s argument ignores a crucial fact: The government didn’t call Burns as a witness at
trial. And Carey never explains how, without testimony from Agent Burns, the district court’s
ruling affected his substantial rights. Instead, he focuses on the merits of the district court’s
Daubert call. This omission dooms his claim. Even if we agreed with Carey on the merits, any
error would be harmless because Agent Burns never testified. See Fed. R. Evid. 103(a); White,
492 F.3d at 404–08. For this reason, we affirm the district court’s denial of Carey’s motion for a
Daubert hearing.
Agent Labno’s Expert Testimony. Carey, Brown, and Marvin Nix challenge the expert
testimony of ATF Agent Christopher Labno. At trial, Agent Labno deciphered code words and
street slang used in the defendants’ intercepted calls and texts. The defendants objected on two
grounds to the admission of Agent Labno’s testimony: (1) his qualifications and (2) his
testimony’s relevance. Because they raised these arguments at trial, we review their challenges
for abuse of discretion. United States v. Dunnican, 961 F.3d 859, 875 (6th Cir. 2020).
We consider the qualifications first. Agent Labno served as a special agent on the ATF’s
drug-trafficking task force more than 18 years, participating in at least 150 investigations. This
work involved purchasing various narcotics, including powder and crack cocaine, in undercover
operations across the United States. Given his extensive experience, Agent Labno was more
than qualified to testify about drug-trafficking-street slang.
This conclusion tracks with our caselaw. We have routinely found “law enforcement
officers” qualify as “expert witnesses” when they “interpret intercepted conversations that use
slang, street language, and the jargon of the illegal drug trade.” United States v. Kilpatrick,
798 F.3d 365, 379 (6th Cir. 2015) (internal quotations omitted); see also United States v. Lopez-
Medina, 461 F.3d 724, 743 (6th Cir. 2006) (holding that 17 years of DEA employment, along
with extensive narcotics-investigation training and experience, qualified a DEA agent to give
expert testimony); United States v. Toland, 717 F. App’x 560, 565–66 (6th Cir. 2017) (same for
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an agent with 11 years of experience). These cases are on all fours here. Agent Labno’s 18 years
of experience qualified him to serve as an expert witness.
We take up the relevance of his testimony next. Under Federal Rule of Evidence 702,
expert testimony must help “the trier of fact to understand the evidence or determine a fact in
issue.” This helpfulness standard “goes primarily to relevance.” Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 591 (1993). In case after case, we have held that testimony from
law enforcement officers like Agent Labno is relevant. The “average juror,” after all, has little
experience with cryptic “drug dealing” slang. Dunnican, 961 F.3d at 875–76 (quotation
omitted); see also Lopez-Medina, 461 F.3d at 742; United States v. Thomas, 74 F.3d 676, 682
(6th Cir. 1995), abrogated on other grounds by Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997).
For instance, in this case, Agent Labno explained drug-trafficking terminology like “hizzy,”
“soft,” “zone,” “diamonds,” “shake,” “whole onion,” and “zip”—words unfamiliar to an ordinary
person. (R. 1247, PageID 12755–70.) So his testimony was relevant.
The defendants push back. Agent Labno, they protest, never worked in the Grand Rapids
area and misinterpreted words. They also point out that Agent Labno admitted that some slang
depends on context. As they see it, that admission showed “there was nothing that Agent Labno
could offer the jury.” (Carey Br. at 31.) We disagree. Defendants’ objections go to the weight of
Agent Labno’s testimony, not its admissibility. And their own questioning of Agent Labno at
trial proves this point. There, Agent Labno conceded he never worked in Grand Rapids or on the
investigation, that slang varied across regions, and that he spoke with colleagues about Grand
Rapids slang before the trial. The jurors heard these concessions and considered them. So we
decline to step into their shoes and reweigh the accuracy of Agent Labno’s testimony now. We
affirm the district court’s admission of Agent Labno’s expert testimony.
One final point. The defendants suggest the district court should have held a Daubert
hearing for Agent Labno. But no defendant requested such a hearing. In fact, at the pretrial
motion hearing about Agent Burns’s testimony, one defense counsel favorably cited the
government’s witness disclosure statement for Agent Labno. “[T]he information that we
received on Agent Labno,” he explained, “is exactly the information that we were seeking on
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Agent Burns.” (R. 1256, PageID 13699.) With no request for a Daubert hearing in the record,
the defendants cannot claim error now.
Lay Witness Voice Identification. Carey also argues that the district court erred when it
allowed four lay witnesses to identify his voice on intercepted calls. Three of the witnesses—
Wilbert Gentry, Officer Thomas Mize, and Sergeant Gregory Alcala—had spoken with Carey in
person. Mize served as Carey’s probation officer, often visiting Carey at his home and speaking
to him on the phone. Sergeant Alcala visited Carey’s residence not long before the trial, talking
to Carey both outside his home and on the phone. And Gentry, Carey’s codefendant, spoke with
Carey many times in jail. The fourth witness, Detective Danny Wills, had spent hundreds of
hours listening to the intercepted calls in real-time, learning Carey’s voice as he monitored
discussions.
Carey presents two general concerns—one preserved and one forfeited—about the voice-
identification witnesses. First, the preserved argument. Carey contends that voice identifications
require an expert witness. We review this claim for abuse of discretion. United States v. Pryor,
842 F.3d 441, 451 (6th Cir. 2016). Next, the point he didn’t raise at trial. Carey suggests all four
defendants were too unfamiliar with his voice to make reliable identifications. We review this
argument for plain error. United States v. Martin, 520 F.3d 656, 658 (6th Cir. 2008).
The standard of admissibility for an “opinion identifying a person’s voice” is a low one.
Fed. R. Evid. 901(b)(5). If the identifying witness has “heard the voice of the alleged speaker at
any time,” his testimony is admissible. United States v. Cooke, 795 F.2d 527, 530 (6th Cir.
1986) (emphasis added) (quotation omitted); see also United States v. Hogan, 402 F. App’x 54,
59 (6th Cir. 2010) (noting voice-identification testimony was admissible even if the witness
acquired familiarity with the voice after the time of recording). What’s more, a witness’s
familiarity with a voice need not come from “face-to-face conversation.” Pryor, 842 F.3d at 452.
“Nor must the witness be qualified as an expert.” Id. (citation omitted).
Each of the government’s voice-identification witnesses passes the admissibility bar.
Contrary to Carey’s assertion, voice identification does not require an expert. Id. And here, each
witness had heard Carey’s voice—either in person, on the phone, or on a recording—more than
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once. This made them familiar enough with his voice to provide a lay opinion. Any remaining
objections about the witnesses’ “minimal contact[s],” motives for testifying, and “exposure to
[Carey’s] voice, go[] to the weight, not the admissibility of the evidence.” United States v.
Branch, 956 F.2d 1164, 1164 (6th Cir. 1992) (per curiam) (unpublished table decision). Carey
appropriately placed such concerns before the jury during cross-examination. The district court
neither erred nor abused its discretion in admitting the voice-identification testimony.
Constructive Possession Instruction. Carey and Brown challenge the district court’s
constructive possession instruction. We review this claim for abuse of discretion, reversing the
district court’s choice “only if the instruction[], viewed as a whole, [was] confusing, misleading,
or prejudicial.” United States v. Taylor, 800 F.3d 701, 709 (6th Cir. 2015) (quoting United
States v. Svoboda, 633 F.3d 479, 483 (6th Cir. 2011)).
At trial, Carey and Brown each faced charges of possession with intent to distribute
cocaine. The district court instructed the jury that, to find the defendants guilty of those charges,
it must find they exercised actual or constructive possession over the cocaine. Constructive
possession, it elaborated, exists when a person has a “right to exercise physical control over the
cocaine” and intent to “exercise” that control—either directly or through other persons.
(R. 12252, PageID 13530.) Brown and Carey don’t challenge the legal accuracy of this
instruction. Instead, they contend it “was not rationally supported by the evidence.” (Brown Br.
at 27.)
We begin with Carey’s claim. He says the government presented “insufficient evidence”
that he had the “right to exercise physical control” over any cocaine. (Carey Br. at 49.) Because
“absolutely no drugs” were found in his presence, he argues the constructive possession
instruction “would confuse a reasonable juror.” (Id. at 50.) Not so. The government produced
intercepted phone calls and texts between Carey and Mayfield that discussed cocaine drop-offs,
quality, and price. Physical surveillance accompanied these communications. It showed that
Mayfield made short trips to Carey’s home right after they discussed a cocaine delivery. So for
both of Carey’s possession counts, the evidence showed that Carey had the right and intent to
exercise control over cocaine. Brown’s claim fails for similar reasons. During the trial, the
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government presented evidence—in the form of physical surveillance, intercepted calls, and
first-hand witness testimony—that tied Brown to cocaine possession and distribution for each of
his possession counts.
In sum, for both Carey and Brown’s possession charges, the government supplied more
than enough evidence to justify the district court’s constructive-possession instruction.
Rule 29 Motions. Brown and Kolarich appeal the district court’s denial of their motions
for acquittal. Both argue the government presented insufficient evidence at trial to support their
various convictions.
We review challenges to the sufficiency of the evidence with fresh eyes. See Taylor, 800
F.3d at 711. De novo inquiry, though, doesn’t mean we “weigh the evidence, assess the
credibility of witnesses, or substitute our judgment for that of the jury.” United States v. Rosales,
990 F.3d 989, 994 (6th Cir. 2021) (quoting United States v. Smith, 749 F.3d 465, 477 (6th Cir.
2014)). Instead, we ask “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Wright, 774 F.3d 1085, 1088 (6th Cir. 2014)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
We start with Brown’s challenge. The jury convicted Brown on three counts: conspiring
to distribute and possess with intent to distribute 500 grams or more of cocaine (Count 1);
possessing with intent to distribute cocaine on April 8, 2018 (Count 5); and possessing with
intent to distribute 500 grams or more of cocaine on May 7, 2018 (Count 12). Focusing on
Counts 5 and 12, Brown contends that “[n]o transaction was observed or substantiated in the
evidence in support of these counts.” (Brown Br. at 27.)
The gist of Brown’s complaint is that no investigator observed Brown cooking cocaine or
distributing the product to his customers. And he’s right about that. Still, the government
produced plenty of direct evidence—in the form of intercepted calls, physical surveillance, and
coconspirator testimony—that Brown worked closely with Mayfield as a wholesale distributor of
cocaine. Consider the conspiracy count. The jury heard testimony, listened to recorded
conversations, and read many texts showing Brown stayed in regular contact with Mayfield
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about his sourcing trips, the operation’s cocaine supply, and the cooking of crack cocaine. A
rational trier of fact could find Brown possessed intimate knowledge of the Mayfield
organization’s workings and participated in many aspects of the trafficking. His conviction for
conspiracy stands.
Next, the possession count for April 8, 2018. This time, intercepted communications
showed that Brown asked Mayfield to bring him half an ounce of cocaine. Physical surveillance
confirmed Mayfield fulfilled the order quickly, driving to Brown’s home just 30 minutes later.
Even though the government didn’t see the cocaine in Brown’s hands, it presented enough
circumstantial evidence to justify the jury’s conviction.
Last, the possession count for May 7, 2018. In spring 2018, Mayfield and Gentry’s
sourcing relationship hit hard times. As supplies dried up, Brown recruited a new cocaine
supplier for Mayfield, named Craig James, and coordinated meetings between the two men. At
trial, James testified that Brown accompanied Mayfield on multiple trips to pick up cocaine. On
the May 7 trip, James noted that Brown and Mayfield secured a whole kilogram of cocaine.
Again, it’s true that the government didn’t directly observe the May 7 transaction. Still, it
presented evidence that would allow a reasonable juror to infer that Brown possessed 500 grams
or more of cocaine with intent to distribute that day.
Like Brown, Kolarich challenges the sufficiency of the evidence for all three of her
convictions. Remember that Mayfield handed off $50,000 in drug-trafficking proceeds to
Kolarich, which she delivered to Gentry. Enlisting the help of two friends, Kolarich wired
$15,900 of the cash directly to Gentry. She flew the rest of the money—around $34,100—down
to Houston herself in a carry-on bag.
This courier role resulted in three charges: conspiring to distribute and possess with intent
to distribute 500 grams or more of cocaine (Count 1); knowingly and intentionally using a
communication facility to facilitate the cocaine conspiracy (Count 9); and interstate travel to
distribute cash drug proceeds from the conspiracy (Count 10). The jury convicted her on all
three counts. Now, Kolarich disputes the knowledge element of each charge, arguing “she was
not aware of the cocaine conspiracy.” (Kolarich Br. at 33.) The government, she alleges, didn’t
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produce “direct evidence” establishing her “precise knowledge” of the “existence and main
purpose of the Mayfield conspiracy.” (Id. at 30.)
At the outset, we note that the government need not present direct, or “smoking gun
evidence,” of a defendant’s guilt. Rosales, 990 F.3d at 996. Instead, “circumstantial evidence
alone is sufficient to sustain a conviction, even if it does not remove every reasonable hypothesis
except that of guilt.” United States v. Hendricks, 950 F.3d 348, 352 (6th Cir. 2020) (quotations
and alterations omitted). Nor must the government establish “precise knowledge,” like Kolarich
suggests. (Kolarich Br. at 30.) “[A] statutory knowledge element [also] can be satisfied by ‘the
deliberate avoidance of knowledge.’” United States v. Evans Landscaping Inc., 850 F. App’x
942, 950 (6th Cir. 2021) (quoting United States v. Patel, 651 F. App’x 468, 471 (6th Cir. 2016)).
In this case, the district court instructed the jury on both knowledge and deliberate
ignorance. Take the conspiracy count. The district court told the jury it could find Kolarich
guilty if it believed she “knew the conspiracy’s main purpose” or “deliberately ignored a high
probability the money was proceeds from the drug conspiracy.” (R. 1252, PageID 13526,
13537.) At trial, the jury heard ample evidence of Kolarich’s presence during key conspiracy
events—evidence that would allow it to convict her under either theory of intent.
For instance, Kolarich knew Gentry had served time in federal prison for a previous
cocaine conviction and that he met Mayfield there. She was present when Mayfield drove down
to Houston to pick up five kilograms of cocaine from Gentry. And just five days after
Mayfield’s Houston trip, Kolarich traveled to Michigan to collect part of the money he owed
Gentry for the drugs. Not long after, when Gentry flew up to Grand Rapids to try to gather the
rest of money, Kolarich drove to meet him. Together, they spent two days trying to track
Mayfield and the missing proceeds down. Later, when Kolarich comforted a shaken Gentry after
he learned of Mayfield’s arrest, she didn’t express surprise or shock at the news.
Admittedly, the government never presented direct evidence of Kolarich’s knowledge of
the cocaine conspiracy. For example, Gentry—her boyfriend—never conceded that he told
Kolarich the $50,000 came from drug trafficking. Even so, the abundance of circumstantial
evidence presented at trial would allow a reasonable juror to infer Kolarich knew, or deliberately
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ignored the fact, she acted as a participant in a cocaine conspiracy. Under either theory of intent,
we conclude that the government met its evidentiary burden for the conspiracy charge.
Kolarich’s arguments about the next two charges—Count 9 and Count 10—fall with the
first. Indeed, Kolarich admits as much, acknowledging that “the same reasoning applies” to
those counts as to the “conspiracy count.” (Kolarich Br. at 33.) This admission makes sense.
To convict Kolarich of the latter charges, the jury needed to find Kolarich knowingly used a
telephone to “facilitate . . . the conspiracy” and traveled “knowingly . . . [to] distribute the
proceeds” of the conspiracy. (R. 1252, PageID 13533–35.) The same evidence that would allow
a reasonable jury to infer that Kolarich knew, or deliberately ignored the fact, that she acted as a
participant in a cocaine conspiracy, also would permit it to make the identical inference as to the
communication and travel counts.
In sum, the government presented sufficient evidence of Brown’s and Kolarich’s role in
the drug-trafficking ring to support each defendant’s three counts of conviction. We affirm the
district court’s denial of Brown’s and Kolarich’s Rule 29 motion.
III.
Each defendant, except Martinellus Nix, challenges some aspect of his or her sentence. We
take up each of their arguments in turn.
Drug-Quantity Calculation. Brown and Carey challenge the drug quantities the district
court used to calculate their sentences. We uphold a district court’s drug-quantity determination
unless it is “clearly erroneous.” United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008). To
calculate drug-quantity, “[t]he district court can make a reasonable estimate based on physical
evidence or testimony.” United States v. Tisdale, 980 F.3d 1089, 1096 (6th Cir. 2020). And it
can use this evidence to hold a defendant accountable for drug quantities “with which he was
directly involved” or that were “reasonably foreseeable” to him as part of a criminal conspiracy.
Young, 847 F.3d at 367 (quotation and alterations omitted). In the end, what matters is that the
drug quantity assigned to a defendant is supported by “a preponderance of the evidence.” Jeross,
521 F.3d at 570 (quoting United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)).
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A preponderance of the evidence supported the drug quantities used to calculate each
defendant’s sentence. Begin with Brown. The district court held him responsible for five to
15 kilograms of cocaine. Brown’s objection to this quantity mirrors his challenge to the
sufficiency of the evidence. The government, he says, had no physical evidence tying him to
more than five kilograms of cocaine. No officer saw him with drugs. And no search recovered
contraband from his residence. But once again, Brown’s argument ignores the extensive wiretap
evidence, officer surveillance, and codefendant testimony that tied him to far more than five
kilograms of cocaine.
Go back to Brown’s recruitment of James as a cocaine supplier. Brown coordinated three
cocaine deals with James for the Mayfield organization. So he is directly responsible for the 2.5
kilograms he received in those meetings. After a time, Brown’s sister took over his coordination
role. She secured another 4.5 kilograms and delivered the product to Mayfield. Mayfield then
passed on some of this cocaine to Brown for distribution. Brown also knew about Mayfield’s
April 4 trip to Houston. While there, Mayfield obtained five kilograms of cocaine for the
organization. Brown texted his sister and Mayfield about the trip, noting he “couldn’t wait” for
Mayfield’s return. (R. 1246, PageID 12377.) The cocaine Brown’s sister and Mayfield hustled
for the operation also add to Brown’s total.
At day’s end, the drug quantities attributed to Brown were “reasonably foreseeable” and
“within the scope of the criminal activity that [Brown] jointly undertook.” Young, 847 F.3d at
367 (quotation omitted). Brown set up Mayfield’s relationship with James. Then, he continued
to receive cocaine from James’s supply even after his sister took over pickup. He likewise knew
Mayfield traveled to Houston to restock the organization’s cocaine source and expected to
benefit from the fresh supply. Given this evidence, “we are hard-pressed to see how the drug
quantities involved were not ‘reasonably foreseeable’ to [Brown].” Tisdale, 980 F.3d at 1097.
The district court didn’t clearly err in calculating Brown’s drug quantity.
Carey makes a similar argument, meriting a similar rejection. At sentencing, the district
court attributed five kilograms of cocaine to Carey. These five kilograms also came from
Mayfield’s April 4 trip to Houston. In intercepted phone conversations, Carey repeatedly
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encouraged Mayfield to go to Houston. He wanted Mayfield to refresh the operation’s cocaine
supply so lower-level distributors like him could resume drug dealing. The district court listened
to these calls at trial and found Carey responsible for the five kilograms from the Texas trip.
Carey contends that five kilograms is too much because he never uttered those exact
words in his conversations with Mayfield. But a drug-quantity determination doesn’t require
explicit statements from a defendant. Instead, a district court need make only a “reasonable
estimate” based on the record. Tisdale, 980 F.3d at 1096; see also United States v. Parrish, 915
F.3d 1043, 1048 (6th Cir. 2019) (“[T]he district court is free to make reasonable inferences from
facts in the record when fashioning a sentence.”).
The district court’s calculation complied with this standard. Carey’s calls with Mayfield
touched on earlier cocaine deliveries from Houston. Those restocks included up to eight
kilograms of cocaine. The district court referenced this conversation to calculate Carey’s drug
quantity. It reasonably inferred that Carey knew Mayfield would return from Houston with
several kilograms of cocaine and urged him to make the trip for that reason. This finding is not
clearly erroneous. After all, under a preponderance-of-the-evidence standard, the district court
only need find it more likely than not that Carey had a hand in the five kilograms of cocaine.
Because it did that here, we affirm.
Drug-Premises Enhancement. Brown challenges another aspect of his sentence: the
drug-premises enhancement. If a defendant maintains a premise to manufacture or distribute a
controlled substance, the Guidelines add two levels to his sentencing range. See U.S.S.G.
§ 2D1.1(b)(12). Because Brown used his home to deal drugs, the district court applied the
enhancement. Brown says the district court got it wrong. He insists the government presented
no evidence that he distributed drugs from his home. He also argues he didn’t “maintain” his
home for purpose of drug distribution. (Id. at 34-36.)
The district court made the right call. Drug distribution need not be the “sole purpose for
which the premises [is] maintained” for the enhancement to apply. Id. § 2D1.1 cmt. n.17.
Instead, a defendant qualifies if distribution is “one of [his] primary and principal uses for the
premises.” Id. (emphasis added). Put another way, distribution must be a “significant or
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important reason for which [the defendant] maintain[s] his home.” United States v. Johnson,
737 F.3d 444, 448 (6th Cir. 2013) (quotation omitted). “Mere incidental or collateral use” will
not do. Id. (internal quotations omitted).
Contrary to Brown’s claims, the drug dealing activities in his home were neither
collateral nor incidental. Phone calls, text messages, and surveillance evidence showed that he
used his home to receive, weigh, distribute, and cook cocaine. Here’s a highlight reel. Mayfield
once dropped off half-ounce amounts of cocaine at Brown’s home. Soon after, someone else
arrived, went in the back door, and left a minute later. Brown also invited others over to cook
crack cocaine. Brown even encouraged his sister to weigh out cocaine on his scales. And he
texted her about cocaine deals taking place in and about his residence.
The district court put these events together. It found drug dealing was one of Brown’s
primary and principal uses for his home and applied the enhancement. Given Brown’s extensive
drug receiving, drug weighing, drug distributing, and drug-cooking activities, the district court
did not clearly err in doing so.
Safety-Valve Relief. Kolarich challenges the district court’s decision to deny her motion
for safety-valve relief. Because a district court makes a factual finding when it grants or denies
such a motion, we review for clear error. United States v. Barron, 940 F.3d 903, 914 (6th Cir.
2019) (citing United States v. Adu, 82 F.3d 119, 124 (6th Cir. 1996)).
A defendant may receive a sentence below the statutory mandatory minimum if she
qualifies for relief under 18 U.S.C. § 3553(f). Designed only to benefit the defendants “who
truly cooperate,” the provision provides a “safety valve” for those who can satisfy its five
criteria. United States v. O’Dell, 247 F.3d 655, 675 (6th Cir. 2011) (quotation omitted);
18 U.S.C. § 3553(f). The defendant must show she satisfies each requirement by a
preponderance of the evidence. United States v. Bolka, 355 F.3d 909, 912 (6th Cir. 2004).
Here, the parties agree Kolarich meets four of the five criteria. But they dispute the
fifth—whether Kolarich “truthfully provided the Government all information and evidence [she
had] concerning the offense or offenses that were part of the same course of conduct” before the
sentencing hearing. 18 U.S.C. § 3553(f)(5). This “tell all” criterion “requires a defendant to
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admit the conduct charged.” O’Dell, 247 F.3d at 675. But that’s not all. It also imposes an
affirmative obligation to “volunteer any information aside from the conduct comprising the
elements of the offense.” Id. (quoting United States v. Arrington, 73 F.3d 144, 149 (7th Cir.
1996)); see also U.S.S.G. § 5C1.2 cmt. n.3 (noting the fifth requirement includes information
about “the offense of conviction and all relevant conduct”).
At the sentencing hearing, Kolarich contended that she did just this. She said she gave
the government “all information and evidence that she had concerning the conspiracy.” (R.
1197, PageID 11225.) Besides, she urged, “there [was] no evidence that [she] knew . . . that the
money” she received “was cocaine proceeds.” (Id. at 11227.) The government disagreed. It
argued she had not fully disclosed “her involvement in the offenses” because she refused to fully
“admit the conduct charged.” (R. 1187, PageID 11144.); O’Dell, 247 F.3d at 675. That is,
Kolarich stood firm to her assertion that she did not know and should not have known the
$50,000 came from cocaine dealing.
The district court sided with the government. It found Kolarich didn’t “fully admit her
involvement in the case.” (R. 1255, PageID 13668–69.) The court compared the jury’s
conviction of Kolarich, which required a finding of actual knowledge or deliberate ignorance,
with Kolarich’s assertion that she didn’t know the $50,000 came from drug trafficking. In the
court’s view, Kolarich’s complete denial of conspiracy knowledge and her decision to proceed to
trial showed that she didn’t truly cooperate. Kolarich contests this finding on appeal, reiterating
her argument that the “record strongly suggests” she did not know and should not have known
“she was a participant in the conspiracy.”2 (Kolarich Br. at 37.)
We disagree. To qualify for safety-valve relief, Kolarich needed to admit, at a minimum,
“the conduct comprising the elements of the offense.” O’Dell, 247 F.3d at 675 (citation
2
On appeal, Kolarich also argues that “[a] defendant is not automatically foreclosed from safety valve relief
because [she] go[es] to trial and [is] convicted.” (Kolarich Br. at 36.) This Court hasn’t yet taken a firm stance “in
the debate over whether a guilty verdict precludes safety valve relief for a defendant whose safety-valve statement
contradicts the verdict.” See United States v. Honea, 660 F.3d 318, 328 (8th Cir. 2011) (quotations and alterations
omitted). But we need not do so here. That’s because the government doesn’t contest Kolarich’s argument about a
“defendant’s exercise of [her] right to a trial by jury.” (Kolarich Br. at 36.) Rather, it focuses its arguments on
Kolarich’s failure to satisfy her burden of proof. Because we agree that Kolarich failed to “admit the conduct
charged,” O Dell, 247 F.3d at 675, we save the jury-verdict issue for another day.
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omitted). This she did not do. Recall that the government charged Kolarich with three offenses.
Each offense included a knowledge element that required a showing of actual knowledge or
deliberate ignorance. So to satisfy the tell-all criteria, Kolarich needed to “provide[]” “all
information and evidence” about her knowledge of the conspiracy. 18 U.S.C. § 3553(f)(5). But
Kolarich never made any admissions consistent with actual knowledge or deliberate ignorance.
Instead, she asserted her innocence as to any knowledge of the cocaine conspiracy throughout
the pretrial, trial, and sentencing proceedings. What’s more, Kolarich made this choice despite
the government’s evidence that she knew about or deliberately ignored her role in the drug-
trafficking conspiracy. The jury heard that evidence and found it sufficient to establish
Kolarich’s mental culpability. So it returned a guilty verdict on all three offenses. The district
court reviewed the same facts, considered the jury’s verdict, and reached a similar conclusion:
Kolarich’s insistence on her innocence contradicted the evidence. This meant she didn’t
“truthfully provide” “all information” about “the conduct charged.” 18 U.S.C. § 3553(f)(5). At
day’s end, “the district court simply did not believe that [Kolarich] [told] the subjective truth as
[she] knew it.” United States v. Aguilera, 625 F.3d 482, 488 (8th Cir. 2010). So it denied her
motion for safety-valve relief.
Given the extensive circumstantial evidence presented at trial, we cannot say the district
court clearly erred in doing so. Besides, when faced with the government’s challenge to her
safety-valve claim, Kolarich never pointed to any disclosure or statement consistent with actual
knowledge or deliberate ignorance. Instead, she insisted that there was no evidence she knew
about the conspiracy. So at bottom, Kolarich failed to satisfy her burden of proof. See Barron,
940 F.3d at 917–18 (“Where the government challenges a defendant’s claim of complete and
timely disclosure and the defendant does not produce evidence that demonstrates such
disclosure, a district court’s denial of [safety-valve relief] is not clearly erroneous.” (citations and
quotations omitted)). Because the safety-valve provision “requires a defendant to admit the
conduct charged,” O’Dell, 247 F.3d at 675, and because the district court did not clearly err in
finding the evidence showed Kolarich failed to do so, we affirm its denial of safety-valve relief.
Career-Offender Enhancement. Marvin Nix challenges the district court’s application of
the career-offender enhancement to his sentence. Because Nix raised this argument below, we
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review his claim de novo. United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en banc)
(per curiam).
To qualify as a career offender, a defendant must have at least two prior felony
convictions for either a crime of violence or a controlled-substance offense. See U.S.S.G.
§ 4B1.1. Nix had one of each. He was convicted under Michigan state law for (1) delivery or
manufacture of a controlled substance and (2) armed robbery. Nix argues the former
conviction—for delivery or manufacture of a controlled substance—is not a controlled substance
offense. If he’s right, the district court misapplied the enhancement. His single armed-robbery
conviction would fall one conviction short of the career-offender threshold.
But Nix is wrong. The Guidelines define a controlled-substance offense as “an offense
under federal or state law . . . that prohibits the manufacture import, export, distribution, or
dispensing of a controlled substance . . . or the possession of a controlled substance . . . with
intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b). We use a
“categorical approach” to determine whether a federal or state statute fits within this definition.
United States v. Booker, 994 F.3d 591, 595 (6th Cir. 2021) (quotation omitted). If the “outer
edges of the state law—often the ‘least culpable conduct’ that the law proscribes”—fall outside
of § 4B1.2’s definition, “then the conviction doesn’t count.” United States v. Garth, 965 F.3d
493, 495 (6th Cir. 2020); see also United States v. Thomas, 969 F.3d 583, 584–85 (6th Cir. 2020)
(per curiam).
Our decision in Havis illustrates the categorical approach at work. In that case, we held
that “attempt crimes do not qualify as controlled substance offenses.” Havis, 927 F.3d at 387.
So if a state or federal offense covers an attempt crime, a conviction for that offense can’t serve
as a predicate for the career-offender enhancement. The least culpable conduct criminalized by
the statute—an attempt—would “fall outside” the definition of a controlled-substance offense.
See Thomas, 969 at 584; see also Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
Contrary to Nix’s assertions, his conviction under the Michigan delivery statute falls
within, not outside the Guidelines. That statute defines delivery as “the actual, constructive, or
attempted transfer” of a controlled substance. Mich. Comp. Laws § 333.7105(1). Under federal
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law, distribution means delivery, and it’s described in identical terms: “the actual, constructive,
or attempted transfer of a controlled substance.” 21 U.S.C. § 802(8), (11); see Garth, 956 F.3d at
496. Because “there is no meaningful difference between the federal offense of distribution and
the Michigan offense of delivery,” Nix’s Michigan conviction qualifies as a controlled-
substance offense. Thomas, 969 F.3d at 585.
Nix counters with Havis’s exemption of attempt crimes. Michigan’s delivery statute
covers the “attempted transfer” of a controlled substance. See Mich. Comp. Laws § 333.7105(1).
So Nix contends Havis applies, and his conviction isn’t a controlled-substance offense. Binding
precedent forecloses this argument. In United States v. Garth, we clarified that “delivery means
attempted transfer, not an attempted delivery.” 965 F.3d at 497. And in Thomas, we applied
Garth to hold that Michigan’s delivery statute fell squarely within the Guidelines’ definition of a
controlled-substance offense. 969 F.3d at 585. What was true in Thomas is true here. Because
“an attempted transfer qualifies as a completed delivery,” Havis’s exclusion of attempt crimes
doesn’t apply to Michigan’s delivery statute. Id.; see also Booker, 994 F.3d at 595–96
(explaining that Thomas forecloses application of Havis to the Michigan delivery statute).
Because Nix had two prior felony convictions—one for a crime of violence and one for a
controlled-substance offense—we affirm the district court’s application of the career-offender
enhancement.
Substantive and Procedural Reasonableness. Gardner and Brown attack the
reasonableness of their sentences. A district court’s sentencing decision must be procedurally
and substantively reasonable. United States v. McCarty, 628 F.3d 284, 289 (6th Cir. 2010). The
former focuses on the method the district court uses to arrive at the length of a sentence. The
latter considers whether the length of the sentence itself is reasonable given “the totality of the
circumstances.” Wandahsega, 924 F.3d at 886. A bit more about each below.
A district court’s sentencing decision should explain how and why it arrives at a
sentence. See Gall v. United States, 552 U.S. 38, 50 (2007). So as a matter of process, a district
court must properly calculate the Guidelines range, consider the § 3553(a) factors (as well as any
arguments for a sentence outside the range), and adequately articulate its reasons for the chosen
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sentence. See Dunnican, 961 F.3d at 880. From a holistic point of view, what matters is that the
district judge “listened to each argument, considered the supporting evidence, was fully aware of
the defendant’s circumstances and took them into account.” United States v. Vonner, 516 F.3d
382, 387 (6th Cir. 2008) (en banc) (internal quotation marks omitted) (quoting Rita v. United
States, 551 U.S. 338, 358 (2007)). When a district court adheres to these steps and gives a
reasoned explanation for its decision, there is no procedural error.
Typically, we assess procedural reasonableness for abuse of discretion. See Gall,
552 U.S. at 41. But if a defendant fails to object to a procedural defect at sentencing, we review
for plain error instead. See United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010).
As to substance, the “touchstone” of our review is “whether the length of the sentence is
reasonable in light of the § 3553(a) factors.” United States v. Tate, 516 F.3d 459, 469 (6th Cir.
2008). We presume a within-Guidelines sentence is substantively reasonable. United States v.
Williams, 436 F.3d 706, 708 (6th Cir. 2006). But a defendant can rebut this presumption if a
district court chose a sentence arbitrarily, ignored pertinent § 3353(a) factors, or gave
unreasonable weight to any single factor. United States v. Conatser, 514 F.3d 508, 520 (6th Cir.
2008). We always review this aspect of a sentencing decision for abuse of discretion. United
States v. Sherrill, 972 F.3d 752, 769 (6th Cir. 2020) (citation omitted). Unlike a procedural
defect, a defendant need not raise it below. Id.
1. Brown’s Sentence. Brown contends his sentence is neither procedurally nor
substantively reasonable. We consider procedure first. Brown says the district court erred when
it refused to grant his motion for a downward variance. Because he failed to raise this defect
below, we review for plain error. United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004).
No error occurred. The district court properly calculated the advisory Guideline range of
168 to 210 months. This range reflected an offense level of 32 and a criminal history category of
IV. It then applied the § 3553(a) factors. Brown’s extensive criminal history, his failure to
comply with court orders and conditions, and his significant role in the drug conspiracy
underscored the district court’s decision. Emphasizing the need for deterrence—given Brown’s
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criminal past and the “amount of drugs” he helped push in “the streets of Grand Rapids”—the
court imposed a sentence of 204 months. (R. 1254, PageID 13653.)
Along the way, the district court also “listened to each argument” Brown raised. See
Vonner, 516 F.3d at 387. It even took special notice of the fact that Brown’s criminal history
was made up (for the most part) of misdemeanors. But even after it considered Brown’s
evidence, the district court found “no support in th[e] record” for a downward variance. Id.;
(R. 1254, PageID 13653.) It did not err, much less plainly, in doing so. Instead, its reasoning
showed it was “fully aware of [Brown’s] circumstances.” See Vonner, 516 F.3d at 387 (internal
quotation omitted). And its explanation sufficed for a within-Guidelines sentence. See Rita,
551 U.S. at 356 (“[W]hen a judge decides simply to apply the Guidelines to a particular case,
doing so will not necessarily require lengthy explanation.”).
But our analysis doesn’t end there. Brown also claims his sentence is substantively
unreasonable. We disagree. The district court focused on the § 3553(a) factors and highlighted
the ones it found most important. Those were “the history and characteristics of the defendant,
the nature [and] seriousness of the offense, [promoting] respect for the drug laws of the United
States, [] provid[ing] just punishment, and protect[ing] the public from further crimes of the
defendant.” (R. 1254, PageID 13654). The district court based its sentence on those factors, did
not place undue weight on any one of them, and did not consider illegitimate factors. So the
sentence was substantively reasonable.
Brown responds that the district court’s decision still shows “statutory imbalance.”
(Brown Br. at 39.) In his view, the district court failed to credit certain sentencing factors (like
Brown’s physical disabilities and relationships with his children) and over-emphasized other
factors (like the need to punish and deter). This disparity, Brown says, means his sentence “is
greater than necessary to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United
States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010) (internal quotation omitted).
It’s true the district court attached great weight to certain factors. But “[n]ot all” § 3553(a)
factors “are important in every sentencing.” United States v. Bridgewater, 479 F.3d 439, 442 (6th
Cir. 2007). “[O]ften one or two prevail, while others pale.” Id. No doubt, the district court did
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not weigh the § 3553(a) factors as Brown hoped. See United States v. Robinson, 892 F.3d 209,
216 (6th Cir. 2018). But that reality alone doesn’t create an abuse of discretion. And Brown has
failed to show otherwise.
Because the district court’s sentencing decision was procedurally and substantively
reasonable, we affirm.
2. Gardner’s Sentence. Gardner challenges only the substantive reasonableness of his
sentence. At 168 months, his sentence reflects an upward variance of 17 months. This above-
Guidelines sentence has both an “upside” and a “downside” for Gardner. United States v.
Thomas, 933 F.3d 605, 613 (6th Cir. 2019). On the one hand, the upward variance “erases any
presumption of reasonableness.” Id. But on the other, the variance doesn’t “trigger a
presumption of unreasonableness” either. Id. The defendant still must make the same abuse-of-
discretion showing. That is, that “the length of the sentence is [un]reasonable in light of the
§ 3553(a) factors.” Tate, 516 F.3d at 469.
The district court’s 17-month variance was not an abuse of discretion. It acknowledged
the Guidelines served as “an initial benchmark,” listed the § 3553(a) factors, and assured
Gardner it considered his arguments “for a lower sentence.” (R. 1219, PageID 11431.) Then, it
took care to explain why it found the initial benchmark insufficient in Gardner’s case. Gardner
had a storied history of drug-related criminal activity. This history included convictions for the
use of marijuana, the use of cocaine, possession with intent to distribute marijuana, possession
with intent to distribute 50 grams or more of cocaine, and the delivery or manufacture of cocaine.
The latest chapter began when Gardner, fresh out of prison and still on supervised release, joined
Mayfield’s drug-trafficking operation. (Id.) In the “short period of time” between his release
from prison in early 2018 and the operation’s takedown that May, Gardner managed to have a
hand in more than “17 kilograms of cocaine.” (R. 1219, PageID 11433.) Given his “inability” to
“conform his conduct” to the law, the district court found the Guidelines range inadequate to
deter Gardner, protect the public, and provide just punishment. (Id. at 11434). So it varied
upward two-levels to impose a 168-month sentence. Because “the court supported its variance
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with rational reasons rooted in the § 3553(a) factors,” its sentence was substantively reasonable.
Thomas, 933 F.3d at 613.
Gardner counters that the district court disregarded “the sentences received by equally (or
more) culpable codefendants,” his “deplorable childhood,” his “challenging personal
background,” and his “limited participation in th[e] offense.” (Gardner Br. at 53.) But the
district court’s decision refutes each of his concerns. Far from ignoring Gardner’s background,
the district court “recognize[d] the extreme difficulty of his childhood” and “considered it.” (R.
1219, PageID 11439.) As for Gardner’s level of participation, the district court listened to
Gardner’s many phone calls with Mayfield. It also took the 17 kilograms of cocaine attributed to
Gardner into account. Viewing this evidence together, the court found Gardner was “well within
this drug conspiracy.” (Id. at 1433.) To be sure, Gardner may not have been the ringleader, like
Mayfield, or the primary supplier, like Gentry. But his participation was far from limited. And
the district court did not overestimate his role.
As for Gardner’s codefendants, he’s right that many received shorter sentences for
similar amounts of drugs. And it’s true that the Guidelines instruct courts to “avoid unwarranted
sentence disparities.” 18 U.S.C. § 3553(a)(6). But that factor is concerned with national
disparities among similarly situated defendants, “not disparities between particular
codefendants.” Conatser, 514 F.3d at 521 (citation omitted). Besides, many of Gardner’s
codefendants cooperated with the government and received “very significant 5K motions.”
(R. 1219, PageID 11417.) Of course, those motions alone may not “explain the [] disparities.”
(Gardner Br. at 47.) But that’s where Gardner’s extensive criminal history comes into play.
Gardner had a criminal history category of IV. Many of his codefendants had a criminal history
category of I or II. And with Gardner’s higher criminal history came a higher Guidelines range.
In the end, Gardner “does not identify any argument that he raised and the district court
failed to address.” United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006). Instead, he “asks us
to balance the factors differently than the district court did.” Id. We decline his invitation. Our
review “looks to whether the sentence is reasonable,” not to whether we “would have imposed
the same sentence” in the first instance. Id. In view of Gardner’s criminal history and
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recidivism rate, the district court reasonably concluded that Gardner’s track record warranted an
upward variance. We “give due deference to [its] decision that the § 3553(a) factors” justify that
variance and affirm. See Robinson, 892 F.3d at 213 (quoting Gall, 552 U.S. at 51).
Federal-Benefits Eligibility. Gardner also contests another part of his sentence: the
imposition of a lifetime ban on federal benefits. Gardner pleaded guilty to one count of
conspiracy to distribute and possess with the intent to distribute cocaine and cocaine base. The
district court found this conviction required a permanent bar on Gardner’s receipt of federal
benefits under 21 U.S.C. § 862(a). At sentencing, Gardner protested the application of § 862(a)
to his sentence. (Id.) Because he raised the issue below, we review the district court’s
interpretation of § 862(a) de novo. United States v. Spencer, 620 F.3d 701, 703 (6th Cir. 2010).
Section 862 provides for the denial of federal benefits for defendants convicted of drug
offenses. The length of this federal-benefit ban depends on two variables: (1) the kind of offense
and (2) the number of prior convictions. In this vein, § 862 distinguishes between “[d]rug
traffickers” and “[d]rug possessors.” 21 U.S.C. § 862(a), (b). A drug-trafficking offense
consists of the “distribution of controlled substances.” Id. § 862(a). If a defendant has one
distribution conviction, the district court may order him ineligible for “all [f]ederal benefits
for up to 5 years.” Id. § 862(a)(1)(A). At two such convictions, the time increases to “up to
10 years.” Id. § 862(a)(1)(B). And “upon a third or subsequent [distribution] conviction,” a
defendant is “permanently ineligible for all [f]ederal benefits.” Id. § 862(a)(1)(C).
The district court found that Gardner fell into that last category. It decided that Gardner’s
drug-conspiracy conviction qualified as his third drug-trafficking offense. And that conviction
permanently disqualified him from the receipt of federal benefits.
The lifetime ban raises an issue of first impression in this Court: Does conspiracy to
distribute and possess with intent to distribute qualify as an “offense consisting of the
distribution of a controlled substances” under § 862(a)? Gardner says that it doesn’t, and the
government concedes he’s right. We agree with the parties’ shared position.
Section 862(a) covers offenses consisting of the “distribution of a controlled substance.”
21 U.S.C. § 862(a). Distribute means “to deliver (other than by administering or dispensing) a
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controlled substance.” 21 U.S.C. § 802(11). Delivery, in turn, is defined as “the actual,
constructive, or attempted transfer of a controlled substance.” Id. § 802(8). So for an offense to
fall under § 862(a), it must include “actual distribution,” or a completed delivery (which would
include an attempted transfer), as an element. See United States v. Williams, 541 F.3d 1087,
1090 (11th Cir. 2008) (per curium). If Congress had meant otherwise—intending § 862(a) also
to cover offenses consisting of the intention or a conspiracy to distribute—it could have said so.
But it didn’t. See United States v. Silva-De Hoyos, 702 F.3d 843, 849 (5th Cir. 2012) (explaining
that when Congress intends for “intent to distribute” to act as a prerequisite for a particular
sentence, it expressly says so).
Turn to the conviction at hand. Gardner pleaded guilty to one count: conspiracy to
distribute and possess with intent to distribute cocaine and cocaine base under 21 U.S.C. § 846.
That offense requires three things. First, “an agreement to violate drug laws, in this case
21 U.S.C § 841.” United States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009). Second,
“knowledge and intent to join the conspiracy.” Id. And third, “participation in the conspiracy.”
Id.; cf. United States v. Potter, 927 F.3d 446, 453 (6th Cir. 2019). Missing from the offense’s list
of elements? Actual distribution. In other words, conspiring to distribute or possessing with the
intent to distribute is not the equivalent of actual distribution. This means Gardner’s drug
conspiracy conviction falls outside of § 862(a)’s reach and cannot serve as the predicate for a
lifetime ban on federal benefits.3 The district court erred in concluding otherwise. For this
reason, we vacate the district court’s imposition § 862(a)’s lifetime ban on federal benefits and
remand for resentencing consistent with this opinion.4
3
Five of our sister circuits have reached similar conclusions about the reach of § 862(a). See, e.g., Silva-De
Hoyos, 702 F.3d at 849 (holding that a conviction for possession with intent to distribute was not an offense
consisting of distribution under § 862(a)); United States v. Jacobs, 579 F.3d 1198, 1200 (10th Cir. 2009) (same);
United States v. Williams, 541 F.3d 1087, 1090–91 (11th Cir. 2008) (same); United States v. Rangel, 823 F. App’x
466, 472 (9th Cir. 2020) (mem.) (same); United States v. Taylor, 698 F. App’x 67, 68–69 (4th Cir. 2017) (per
curiam) (same for a conviction for conspiracy to distribute and possess with intent to distribute cocaine); United
States v. McCormick, 603 F. App’x 194, 196–97 (4th Cir. 2014) (per curiam) (same for a drug manufacturing
conviction).
4
The parties agree on the remand but disagree about its scope. The government admits § 862(a) doesn’t
cover Gardner’s conspiracy conviction. But it doesn’t leave it at that. Instead, it offers an alternative: § 862(b).
Section § 862(b) imposes a one-to-five-year ban on federal benefits for offenses “involving the possession of a
controlled substance.” The government urges us to hold that Gardner’s drug-conspiracy conviction is an offense
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IV.
For these reasons, we affirm the district court on all claims but one.
“‘involving’ possession” that merits the application of § 862(b)’s five-year ban. (Gov. Br. at 179.) Gardner, of
course, argues the other way. He asks us to limit our remand to the removal of § 862(a)’s lifetime ban.
We decline to take either path. The imposition of § 862(b)’s one-to-five-year ban, unlike § 862(a)(1)(C)’s
lifetime ban, is left to the district court’s discretion. So on remand, the district court may consider—in the first
instance—whether Gardner’s drug-conspiracy conviction falls into § 862(b)’s ambit.