United States v. Lisa Burgess ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0031n.06
Nos. 22-1110/22-1112
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jan 13, 2023
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
JOSEPH DAVID BURGESS (22-1110); ) MICHIGAN
LISA RENE BURGESS (22-1112), )
Defendants-Appellants. ) OPINION
)
)
Before: MOORE, GIBBONS, and LARSEN, Circuit Judges.
LARSEN, J., delivered the opinion of the court in which GIBBONS, J., joined in full, and
MOORE, J., joined in part. MOORE, J. (pp. 12–14), delivered a separate opinion concurring in
part and dissenting in part.
LARSEN, Circuit Judge. Joseph and Lisa Burgess pleaded guilty to offenses stemming
from a drug trafficking conspiracy. They now appeal their sentences. Because the district court
did not err in sentencing the Burgesses, we AFFIRM.
I.
Joseph and Lisa Burgess, a married couple, trafficked significant quantities of
methamphetamine from their residence in Lansing, Michigan, as part of a larger conspiracy.
Confidential informants tipped off law enforcement about the Burgesses’ involvement. An
investigation ensued, and in January 2020, officers executed a search warrant at the Burgesses’
home and seized 1,341.9 grams of methamphetamine, forty-eight guns, and over $16,000 in cash.
They were both charged with conspiracy to distribute and possess with intent to distribute fifty
Nos. 22-1110/1112, United States v. Burgess et ux.
grams or more of methamphetamine, in violation of 21 U.S.C. § 846, and possession with intent
to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
Joseph also was charged with possession of firearms in furtherance of drug trafficking, in violation
of 18 U.S.C. § 924(c)(1)(A)(i). On the morning their jury trial was set to begin, the Burgesses
pleaded guilty to all charges. The district court sentenced Joseph to 292 months in prison for the
drug offenses and 60 months for the firearm offense, to be served consecutively. The court
sentenced Lisa to 235 months in prison. Both sentences were at the bottom of the relevant
Guidelines ranges. The Burgesses timely appealed their sentences.
II.
Joseph Burgess raises three specific sentencing issues on appeal: the assessment of a
four‑level leadership enhancement, the denial of a downward departure for his health issues, and
the denial of his motion for a downward variance. We address each in turn.
Leadership Enhancement. Joseph argues that the district court erred by imposing a
four‑level leadership enhancement to his base offense level. We review the district court’s legal
conclusion that Burgess was a leader “deferentially, and its factual findings for clear error.” United
States v. Sexton, 894 F.3d 787, 794 (6th Cir. 2018) (quoting United States v. House, 872 F.3d 748,
751 (6th Cir. 2017)). “[W]e abide by the court’s findings of fact unless the record leaves us with
the definite and firm conviction that a mistake has been committed.” Id. (quoting House, 872 F.3d
at 751).
The Guidelines recommend a four-level enhancement for a defendant who was “an
organizer or leader of a criminal activity that involved five or more participants.” U.S.S.G.
§ 3B1.1(a). To qualify for the enhancement, the defendant must have been the “organizer, leader,
manager, or supervisor of one or more other participants.” Id. cmt. n.2. In considering whether a
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defendant is an organizer or leader, “the court should consider . . . the exercise of decision making
authority, the nature of participation in the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation
in planning or organizing the offense, the nature and scope of the illegal activity, and the degree
of control and authority exercised over others.” Id. cmt. n.4. The court “need not find each factor
in order to warrant an enhancement.” United States v. Castilla-Lugo, 699 F.3d 454, 460 (6th Cir.
2012).
The district court did not err in imposing the leadership enhancement. The court weighed
the pertinent factors and found that Joseph’s involvement was extensive. It reasonably concluded
that Joseph had significant decision making authority because he set the drug prices, quantities,
method of payment, and other relevant terms for other participants. The court also considered the
fact that Joseph took the largest share of the profits. And the court found that Joseph had control
over several conspiracy participants based on the PSR report, informant testimony, and his text
messages. All this evidence supports the court’s finding that Joseph was a leader of the conspiracy.
Joseph argues he was just a “middleman” and was therefore not eligible for the
enhancement. But the evidence the district court relied on to assess the enhancement suggests he
played a more significant role. Because there was sufficient evidence to support the court’s finding
that Joseph’s involvement went beyond mere buying and selling, and that he had control over at
least one other participant, the district court did not err by assessing the four-level leadership
enhancement. See United States v. Schultz, 14 F.3d 1093, 1099 (6th Cir. 1994); United States v.
Davis, 815 F. App’x 908, 914–15 (6th Cir. 2020); United States v. Caro-Silva, 815 F. App’x 836,
842 (6th Cir. 2020).
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Departure. Joseph next argues that the district court erred by denying his motion for a
downward departure under U.S.S.G. § 5H1.4, which authorizes a departure for defendants with an
“extraordinary physical impairment.” Joseph believes the departure is warranted because he
suffers from an undiagnosed neurological condition that seriously impairs his vision. But we may
not review a district court’s denial of a downward departure “unless the record shows that the
district court was unaware of, or did not understand, its discretion to make such a departure.”
United States v. Taylor, 818 F. App’x 495, 505 (6th Cir. 2020) (quoting United States v. Santillana,
540 F.3d 428, 431 (6th Cir. 2008)). Here, the district court expressly considered Joseph’s motion
for a departure but concluded that a departure was not warranted in light of Joseph’s particular
medical difficulties. The court therefore understood its discretion to grant the departure but
decided not to. So we cannot review the court’s decision to deny the departure.
Variance. Joseph also argues the district court erred by refusing to vary downward and
thus imposing a substantively unreasonable sentence. We review for an abuse of discretion.
United States v. Owen, 940 F.3d 308, 317 (6th Cir. 2019). We presume that a sentence within the
Guidelines range, like Joseph’s, is reasonable. Id.Joseph argues that he should have been granted a downward variance based on a perceived
disparity between his 292-month sentence and that of coconspirators Garylee Dexter, who received
108 months,1 and Kendra Stidolph, who received 45 months. But “the district court was not even
required under § 3553(a)(6) to assess the local disparities of a sentence; rather, the focus of
§ 3553(a)(6) is on national disparities, not specific individual cases.” United States v. Parrish,
1
The Burgesses’ argument that Dexter’s sentence effectively amounts to “zero” months because
he was sentenced concurrently to a state sentence for an unrelated homicide charge is mistaken.
Should Dexter’s state sentence be vacated, he would still have to serve his federal sentence of 108
months.
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915 F.3d 1043, 1049 (6th Cir. 2019) (citation and internal quotation marks omitted). In any event,
the district court explained the reasons for the disparities. See United States v. Conatser, 514 F.3d
508, 522 (6th Cir. 2008) (“Disparities between the sentences of coconspirators can exist for valid
reasons, such as differences in criminal histories, the offenses of conviction, or one coconspirator’s
decision to plead guilty and cooperate with the government.”). Unlike Dexter and Stidolph,
Burgess was assessed a leadership enhancement and was held accountable for a much higher drug
quantity. And unlike Dexter and Stidolph, Burgess did not receive full credit for acceptance of
responsibility because he chose not to plead guilty until the day of trial.
Joseph also argues that the district court should have granted a downward variance for his
“unrewarded cooperation.” Joseph had initially agreed to cooperate with the government but later
decided he wanted to proceed to trial. As a result, Joseph did not receive a § 5K1.1 departure for
cooperation. Then, on the morning his trial was set to begin, he changed his mind and decided to
plead guilty. Joseph now argues that the district court should have granted a downward variance
for his cooperation but did not do so because the court did not understand its discretion to grant
the variance. At sentencing, the district court explained that the mere fact that other conspirators
had received cooperation credit, but the Burgesses had not, “does not give me a reason to grant a
variance.”
Joseph casts this statement as evidence that the district court did not understand its
discretion to grant a variance based on cooperation, even in the absence of a § 5K1.1 motion from
the government. But we see no evidence of confusion on the district court’s part. Indeed, “we
presume that the district court understood its discretion” to grant a variance, “absent clear evidence
to the contrary.” United States v. Ruiz, 777 F.3d 315, 321–22 (6th Cir. 2015) (quoting Santillana,
540 F.3d at 431). Here, Joseph cited the relevant caselaw in his motion to the district court and at
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the sentencing hearing, and it is evident that the district court read the motion and heard the
argument. There is no evidence that the district court misunderstood its discretion. It just decided,
reasonably, not to grant a variance based on Joseph’s eleventh-hour guilty plea and his early, but
withdrawn, offer to cooperate. See, e.g., United States v. Allen, 444 F. App’x 867, 869 (6th Cir.
2011).
Joseph offers several other reasons why he believes the district court should have granted
a downward variance, including his unusual health condition, compliance on bond, improved
conduct, the short duration of the conspiracy, and the fact that he claims he originally joined the
conspiracy to save Dexter’s life. The district court considered these arguments, weighed the
relevant § 3553(a) factors, and ultimately determined that a downward variance was not
appropriate in this case. Because the weighing of the § 3553(a) factors “is a matter of reasoned
discretion, not math,” we are highly deferential to the district court’s sentencing decisions. United
States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). Joseph’s bottom-of-the-Guidelines sentence
was reasonable.
III.
Lisa Burgess also raises three distinct sentencing issues on appeal: the assessment of a
firearm enhancement, the denial of a minor role adjustment, and the denial of a downward
variance. We address each in turn.
Firearm Enhancement. Lisa challenges the two-level enhancement the district court levied
pursuant to U.S.S.G. § 2D1.1(b)(1) for possessing firearms in connection with her drug offenses.
The commentary to the Guidelines explains that this “enhancement should be applied if the
weapon is present, unless it is clearly improbable that the weapon was connected with the offense.”
U.S.S.G. § 2D1.1, cmt. n.11(A).
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For the enhancement to apply, the government must show “by a preponderance of the
evidence that ‘(1) the defendant actually or constructively “possessed” the weapon, and (2) such
possession was during the commission of the offense.’” United States v. Greeno, 679 F.3d 510,
514 (6th Cir. 2012) (quoting United States v. Catalan, 499 F.3d 604, 606 (6th Cir. 2007))
(abrogated on other grounds by N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111
(2022)). Lisa concedes she possessed the firearms during the drug-trafficking operation. Thus,
there is a presumption that they were used in connection with the offense. See, e.g., United States
v. Bolka, 355 F.3d 909, 912 (6th Cir. 2004). It is Lisa’s burden to show that it was “clearly
improbable” that the weapons were connected to the offense. Catalan, 499 F.3d at 606. “[T]he
clearly improbable standard is a difficult burden to meet in the first instance at sentencing;
moreover, on appeal, we review the district court’s application of § 2D1.1(b)(1) for clear error.”
United States v. Clisby, 636 F. App’x 243, 247 (6th Cir. 2016) (alteration in original) (internal
quotation marks omitted). Factors relevant to that determination include the type of weapon
involved, the accessibility of the weapon to the defendant, the presence of ammunition, the
proximity of the weapon to the illicit drugs, the defendant’s evidence concerning the use of the
weapon, and whether the defendant engaged in trafficking. See, e.g., United States v. Edmonds, 9
F. App’x. 330, 332 (6th Cir. 2001). No single factor is controlling. Id.Forty-eight firearms were recovered from the Burgesses’ home, including semi-automatic
pistols, an AR-15 rifle, revolvers, shotguns, and long rifles, along with 12,000 rounds of
ammunition. The court found that the guns were “everywhere” in the house, including loaded
guns in close proximity to the stored drugs. The record establishes that the guns were visible to
conspirators who came to the house to purchase drugs from the Burgesses. Further, the mere
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presence of the guns likely emboldened the Burgesses in their drug trafficking and helped protect
the drugs and funds stored at the house.
Lisa argues that it was clearly improbable that she possessed the weapons in connection
with her drug offenses because the conspiracy only lasted for a few months and because she
acquired the firearms for legal reasons, such as hunting, target practice, and collecting guns as a
hobby. She argues that “the guns did not change character from legal possession to possession in
connection with a drug crime during the three months the conspiracy lasted.” Appellant Br. at 22–
23. But the district court heard and reasonably rejected these arguments at Lisa’s hearing. The
court noted that the fact that the guns might have been used for lawful purposes did not change the
fact that they were also used for unlawful purposes. Considering all relevant evidence, the court
concluded it was not clearly improbable that the weapons were connected to the offense. Because
Lisa has failed to show that the firearms were possessed only for lawful purposes, the district court
did not err in assessing the enhancement. See, e.g., United States v. Moses, 289 F.3d 847, 851 (6th
Cir. 2002).
Minor Role Adjustment. Lisa argues that the district court erred by declining to grant her
a two-level decrease in her base offense level as “a minor participant in any criminal activity.”
U.S.S.G. § 3B1.2(b). A “minor participant” is one who is “less culpable than most other
participants in the criminal activity, but whose role could not be described as minimal.” U.S.S.G.
§ 3B1.2, cmt. n.5. Whether this adjustment applies is “based on the totality of the circumstances
and involves a determination that is heavily dependent upon the facts of the particular case.” Id.
cmt. n.3(C). We review the district court’s denial of a mitigating role adjustment for clear error.
United States v. Lanham, 617 F.3d 873, 888 (6th Cir. 2010).
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The court considered the relevant Guidelines factors and concluded, based on a totality of
the circumstances, that Lisa did not have a minor role in the conspiracy. The court found and the
record supports that Lisa had substantial knowledge of the conspiracy, kept track of money for her
husband and coconspirator Dexter, had significant decision making authority, and benefited
financially from the conspiracy. Lisa admitted that she drove her husband around to conduct drug
transactions and went on drug trips with other conspirators. The court heard and rejected Lisa’s
arguments that she was only involved because she was Joseph’s wife and because she lived in the
family home. Nor did it credit Lisa’s argument that she did not stand to benefit from the conspiracy
because she had a stable job of her own. The evidence supports the district court’s finding that
Lisa was not less culpable than most of the other participants in the conspiracy.
Downward Variance. Lisa also argues the district court abused its discretion in denying
her motion for a downward variance. She relies on largely the same arguments her husband makes
in support of a downward variance; those arguments fail for the same reasons discussed above
with respect to Joseph. The district court did not abuse its discretion in denying a downward
variance, nor has Lisa overcome the presumption of reasonableness afforded her within-Guidelines
sentence. See United States v. Bradley, 845 F. App’x 439, 444 (6th Cir. 2021).
IV.
The Burgesses raised new arguments in their reply briefs: that Joseph’s firearms
conviction and Lisa’s firearms enhancement violate the Second Amendment. Neither claim was
presented to the district court, so any review we might undertake would be for plain error only.
See Fed. R. Crim. P. 52. But neither claim was presented in the Burgesses’ opening briefs on
appeal either, so each is forfeited. See, e.g., United States v. Presley, 18 F.4th 899, 902 n.2 (6th
Cir. 2021) (finding an argument forfeited “because it was first raised in a reply brief”). The
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Burgesses ask us to overlook the forfeiture, claiming that they could not have anticipated that New
York State Rifle Association v. Bruen, 142 S. Ct. 2111 (2022), would partially abrogate this court’s
decision in United States v. Greeno, 679 F.3d 510 (6th Cir. 2012). Even if there might be
circumstances in which intervening Supreme Court precedent would excuse a forfeiture, Bruen
does not help the Burgesses here.
Bruen abrogated the second step of Greeno’s approach to analyzing Second Amendment
challenges. Bruen, 142 S. Ct. at 2127 (“Despite the popularity of this two-step approach, it is one
step too many.”). But Bruen left in place the first step, which asks whether “the government can
prove that the regulated conduct falls beyond the Amendment’s original scope.” Id. at 2126; see
also id. at 2127 (“Step one of the predominant framework is broadly consistent with Heller, which
demands a test rooted in the Second Amendment’s text, as informed by history.”).
In Greeno, this court held at the first step that “the Section 2D1.1(b)(1) enhancement is
consistent with the historical understanding of the right to keep and bear arms, which did not
extend to possession of weapons for unlawful purposes.” 679 F.3d at 520. So the conduct
regulated by the enhancement fell “outside the scope of the Second Amendment right as
historically understood.” Id. Bruen did not disturb that holding, so it does not help Lisa.2
Bruen does not help Joseph either. At his plea hearing he answered “yes” to the question
whether he had possessed firearms in furtherance of his drug crimes. Greeno held at step one that
the original understanding of the Second Amendment “did not extend to possession of weapons
for unlawful purposes.” 679 F.3d at 520. Bruen did not disturb that step-one analysis. Bruen
2
It makes no difference that Lisa characterizes her belated argument as an as-applied challenge.
The question is still a step-one question: whether her conduct fell “outside the scope of the Second
Amendment right as historically understood.” Greeno, 679 F.3d at 520. And Greeno considered
the possibility of as-applied challenges. See id. at 521. Bruen did not change the landscape on
this front.
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instead referred repeatedly to the rights of “law-abiding citizens.” 142 S. Ct. at 2122 (emphasis
added); see also, e.g., id. at 2131, 2156. So, having admitted to conduct “outside the scope of the
Second Amendment right as historically understood,” Greeno, 679 F. 3d at 520, Joseph cannot
seek refuge in Bruen.
***
We AFFIRM.
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KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
I concur with the majority, except as to its determination that the district court properly applied
the leadership enhancement to Joseph Burgess (“Burgess”).
We review the district court’s determination that Burgess was a leader “deferentially, and
its factual findings for clear error.” United States v. Sexton, 894 F.3d 787, 794 (6th Cir. 2018)
(quoting United States v. House, 872 F.3d 748, 751 (6th Cir. 2017)).
To qualify for the leadership enhancement, the defendant must have been the “organizer,
leader, manager, or supervisor of one or more other participants.” U.S.S.G. § 3B1.1 cmt. n.2. “In
general, ‘a defendant must have exerted control over at least one individual within a criminal
organization for the enhancement of § 3B1.1 to be warranted.’” United States v. Caro-Silva, 815
F. App’x 836, 842 (6th Cir. 2020) (quoting United States v. Vandeberg, 201 F.3d 805, 811 (6th
Cir. 2000)); see also United States v. Bertram, 900 F.3d 743, 753 (6th Cir. 2018).
The government, at sentencing, produced as evidence that Burgess was exerting control
over Dexter a collection of messages exchanged between the two. In the messages, Dexter
requested that he receive fifty percent of profits from clients that came from him, and Burgess
replied that, unless Dexter was going to buy half of their product, Dexter should not try to shake
Burgess down. R. 155-1 (Message Exchange at 4) (Page ID #833). The government also provided
a drug ledger which shows that Burgess was supplying at least five other individuals and that he
was setting the prices for those individuals to pay and which includes the statement “I’m sole
supply for all crews within 2 months.” R. 155-2 (Drug Ledger) (Page ID #836). At the sentencing
hearing, this was the only evidence that the government offered to show that Burgess was
exercising control over one of the other participants in the conspiracy. R. 169 (Sent’g Hr’g Tr. at
24) (Page ID #967).
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Evidence of buying and selling drugs is insufficient to show that a defendant is a leader or
exercised control over another participant. See United States v. Schultz, 14 F.3d 1093, 1099 (6th
Cir. 1994) (“[M]ere buying and selling, without other evidence, is not sufficient to show that a
defendant is a leader, organizer, manager, or supervisor.”); U.S. v. Garcia, 19 F.3d 1123, 1125
(6th Cir. 1994) (holding that there was insufficient evidence that the defendant, who was a
distributor of drugs, was a leader or organizer because there was insufficient evidence to connect
him to the lower tier of drug sellers); see also United States v. Kamper, 748 F.3d 728, 748 (6th
Cir. 2014) (“To qualify for this enhancement, a defendant must have managed or supervised ‘one
or more other participants,’ and not merely the criminal scheme.”). In support of its position, the
government argued that in United States v. Caro-Silva, a panel of the Sixth Circuit concluded that
a defendant was a leader when he “decided to whom drugs should be sold and the method of
payment, collected money, sold drugs himself, and obtained drugs for others to sell.” 815 F. App’x
at 842. But the defendant in Caro-Silva decided to whom the other participants should sell drugs
and determined the method of payment that the others were to use. The panel in Caro-Silva used
the following as an example of the behavior that made the defendant a leader: he “instructed a co-
conspirator . . . to whom he was to sell, and when and where he was to meet the drug purchaser”
and, when told that a co-conspirator’s customer was “anxious to receive his cocaine,” “responded
that the customer would have to wait until [the defendant] was ready.” Id. This is much more
clear-cut evidence that the defendant exercised control over the other participants than what was
presented to the district court in this case. In another case holding that a defendant had exercised
control over others, there was evidence that the defendant had “figuratively looked [another
individual] in the eye and said, you know what you have to do.” United States v. Moncivais, 492
F.3d 652, 660 (2007). Other situations in which defendants were determined to have supervised
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or exercised control over others include when a defendant directed a participant to obtain a money
order to bribe someone and, when asked by the participant if he could leave the conspiracy, refused
to allow the participant to do so. United States v. Caseslorente, 220 F.3d 727, 736 (6th Cir. 2000).
The district court assessed the factors under U.S.S.G. § 3B1.1 cmt. 4, finding that Joseph’s
involvement was extensive, he had significant decision-making authority, and took the largest
share of the profits. As to control over other participants, the district court found only that it didn’t
think there’s any doubt of the nature and scope of the illegal activity and the degree
of control and authority exercised—it’s true there might be—obviously Mr.
Johnson probably exercised more control or authority, but within these at least five
people in this group, [Burgess] certainly was the leader or organizer as it relates to
his distribution of drugs . . . certainly in his supply to Mr. Dexter and others . . . .
R. 169 (Sent’g Hr’g Tr. at 26–27 (Page ID #969–70). But the leadership enhancement can be
applied only when the defendant “has ‘exerted control over at least one individual within a criminal
organization,’” and “not where the defendant has ‘merely exercised control over the property,
assets or activities of the enterprise.’” Sexton, 894 F.3d at 795 (quoting United States v. Swanberg,
370 F.3d 622, 629 (6th Cir. 2004)). Thus, the district court was required to find that Burgess
exercised control over another participant, and not just the activities of the criminal enterprise.
Because I believe that the district court clearly erred when it applied the leadership enhancement
without such a finding, I respectfully dissent from the majority’s affirmance of Burgess’s sentence.
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