United States v. Harold Salyers , 592 F. App'x 483 ( 2015 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0105n.06
No. 14-5367 FILED
Feb 04, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
HAROLD WAYNE SALYERS, )
DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
)
)
BEFORE: SILER, GRIFFIN, and WHITE, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Harold Wayne Salyers was convicted by a jury of four counts arising from his
involvement in a conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(a). The
district court imposed a sentence of 120 months, which defendant now appeals.1 For the reasons
that follow, we vacate defendant’s sentence and remand to the district court for resentencing.
I.
At trial, several witnesses described defendant’s involvement in the conspiracy. One
such witness, Georgina Hobson, testified that on one occasion defendant and Hobson’s daughter,
Jennifer Rowland, travelled to Cincinnati to purchase heroin; defendant returned with fourteen
grams of heroin.
1
Defendant does not appeal his convictions.
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United States v. Salyers
Previously, Hobson also travelled with defendant to Cincinnati to purchase heroin; she
testified she had done so “over 10 or 15” times. Hobson testified that defendant’s supplier in
Cincinnati was a drug dealer she only knew by the nickname “Money,” and that defendant would
purchase between $400 and $800 of heroin from Money on each trip.
Jennifer Rowland, a government witness, testified that defendant “was paying me for
sex,” first with money, then with drugs. She travelled with defendant to Cincinnati on “ten or
more” occasions so that defendant could purchase heroin from Money. Jennifer Rowland
testified that one of the first times she traveled with defendant to buy heroin from Money, “I
tasted it to make sure it was, you know, real stuff because I guess I was supposed to know what it
was supposed to taste like.” She also stated that on one occasion, defendant sold “an 8 ball” of
heroin to another drug dealer, Dwain Howard.
George Rowland testified for the government that he purchased heroin from defendant
and travelled to Cincinnati with him several times when defendant purchased heroin from
Money. George Rowland also bought heroin from Money.
Following the jury’s verdict, defendant filed a sentencing memorandum objecting to the
four-level leadership enhancement under U.S.S.G. § 3B1.1 recommended by the presentence
investigation report. The presentence investigation report calculated a Guidelines range of 78 to
97 months, based on a criminal history category of I and a total offense level of 28, including the
§ 3B1.1 enhancement, and recommended a total sentence of 97 months.
At sentencing,2 the court held that the leadership enhancement was “a viable
enhancement” because defendant was “the conduit that brought heroin to Clark County and was
2
Defendant had been previously sentenced to 240 months, the mandatory minimum term
of imprisonment under § 841(a) when death results from the distribution of a controlled
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No. 14-5367
United States v. Salyers
. . . the leader/organizer; and I think there was evidence that he provided it for a number of
people . . . .” Ultimately, the district court sentenced defendant to 120 months in prison, an
upward departure from the 97-month recommendation of the presentence investigation report.
II.
We review sentences “for reasonableness, which, we have determined, has both
substantive and procedural components.” United States v. Thomas, 498 F.3d 336, 339 (6th Cir.
2007) (citation and quotation marks omitted).
A sentence is procedurally unreasonable if, among other things, the district court “fail[s]
to calculate (or improperly calculate[s]) the Guidelines range, treat[s] the Guidelines as
mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s] a sentence based on
clearly erroneous facts, or fail[s] to adequately explain the chosen sentence.” Gall v. United
States, 552 U.S. 38, 51 (2007). Which standard of review applies to a defendant’s challenge to
the procedural reasonableness of a sentence depends on whether the defendant preserved that
challenge for appeal. United States v. Herrera–Zuniga, 571 F.3d 568, 578 (6th Cir. 2009). We
review preserved procedural-reasonableness challenges for an abuse of discretion. United States
v. Freeman, 640 F.3d 180, 185–86 (6th Cir. 2011); see also United States v. Bates, 552 F.3d 472,
476 (6th Cir. 2009). Within this framework, our review of the district court’s specific legal
determinations is de novo, and review of the district court’s specific factual findings is for clear
error. United States v. Gardner, 649 F.3d 437, 442 (6th Cir. 2011).
Defendant preserved for appeal his challenge to the leadership enhancement; thus, our
review is for an abuse of discretion. This court grants deference to the district court’s finding
substance. Wade Dickerson, Hobson’s fiancé, died after consuming, among other substances,
heroin he obtained from defendant. That sentence was later vacated because of an intervening
Supreme Court decision.
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United States v. Salyers
that a defendant was a leader or organizer. United States v. Washington, 715 F.3d 975, 983 (6th
Cir. 2013).
Even if a procedural sentencing error occurs, however, we will not remand for
resentencing if the error is harmless. See United States v. Hazelwood, 398 F.3d 792, 801 (6th
Cir. 2005). Sentencing errors are harmless where we are certain that the “error at sentencing did
not cause the defendant to receive a more severe sentence” than would have been imposed
without the error. United States v. Gillis, 592 F.3d 696, 699 (6th Cir. 2009) (citation omitted).
III.
Defendant argues that the district court abused its discretion by imposing the leadership
enhancement. We agree, and because we also conclude that the district court’s error was not
harmless, we vacate defendant’s sentence and remand for resentencing.
To justify the imposition of a leadership or organizer enhancement under U.S.S.G.
§ 3B1.1(a), the government must show by a preponderance of the evidence that a defendant “was
an organizer or leader of a criminal activity that involved five or more participants.” See also
Washington, 715 F.3d at 983. Thus, there are two requirements that the government must
satisfy: (1) that there were five or more “participants” in the criminal activity, and (2) that
defendant was the leader or organizer of those participants.
Even assuming, arguendo, that the government satisfied its burden to show that there
were at least five participants in the conspiracy here, it has not met its burden to show that
defendant was the “leader or organizer” of that conspiracy. We have repeatedly held that “[i]n
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. Vandeberg, 201
F.3d 805, 811 (6th Cir. 2000) (quoting United States v. Gort-Didonato, 109 F.3d 318, 321 (6th
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Cir. 1997)); see also United States v. Walls, 546 F.3d 728, 735 (6th Cir. 2008); United States v.
Lalonde, 509 F.3d 750, 765 (6th Cir. 2007); United States v. Swanberg, 370 F.3d 622, 629 (6th
Cir. 2004). We derive this “control” requirement from the commentary to § 3B1.1, which lays
out factors for sentencing courts to consider when applying the enhancement. These factors are:
“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.” U.S.S.G.
§ 3B1.1 comment. (n.4). Thus, many of these factors emphasize control over others in the
criminal activity.
In the present case, the evidence does not demonstrate that defendant exercised control
over any other participant. Rather, it shows that defendant purchased heroin in Cincinnati,
travelled back to Kentucky, and distributed it to others. To the extent that defendant’s customers
resold the drugs he supplied, there is no evidence that defendant had any say in that level of
distribution. Similarly, there is no evidence that he received any remuneration from those to
whom he sold drugs beyond that in the original sale. No one took orders from defendant.
Participant George Rowland travelled to Cincinnati with defendant on several occasions.
However, Rowland was both defendant’s and Money’s customer. He bought drugs from both of
them and resold the drugs on his own. In short, the evidence shows that defendant was at most
the peer of the others involved in the criminal activity, not their leader. In other words, “the
record at most demonstrates only that [defendant] sold drugs to multiple individuals. He had no
control over what they did with the drugs after the purchases.” Swanberg, 370 F.3d at 629.
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The district court made few findings relating to the § 3B1.1 enhancement. In its only
statement pertaining to that enhancement, the court found that defendant was “the conduit that
brought heroin to Clark County.” In other words, the district court reasoned that defendant’s role
was essential to the distribution of heroin at issue in this case. This characterization is
accurate—the record suggests that without defendant’s frequent trips to Cincinnati and his
connection to Money, the heroin would not have been distributed. However, we have explained
that “merely playing an essential role in the offense is not equivalent to exercising . . . control
over other participants,” which is what is required to impose an enhancement under § 3B1.1.
United States v. Wright, 747 F.3d 399, 412 (6th Cir. 2014) (citation omitted).
For this reason, we hold that the district court imposed a procedurally unreasonable
sentence when it imposed a leadership enhancement under § 3B1.1(a). Removing this
enhancement, defendant’s base offense level would drop from 28 to 24. The district court did
not indicate that it would have imposed the same 120-month sentence even if defendant’s base
offense level was 24. Accordingly, we cannot conclude that the “error at sentencing did not
cause the defendant to receive a more severe sentence” than would have been imposed without
the error, Gillis, 592 F.3d at 699, and thus we cannot say the error was harmless.
In view of our disposition of the leadership enhancement issue, we need not reach
defendant’s other assignments of error.
IV.
For these reasons, we vacate defendant’s sentence and remand for resentencing in
accordance with this opinion.
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