United States v. Brian Keith Wells ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0275p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 21-5890
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v. │
│
BRIAN KEITH WELLS, aka B. K. Wells, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for the Eastern District of Kentucky at Pikeville.
No. 7:20-cr-00006-1—Robert E. Wier, District Judge.
Decided and Filed: December 22, 2022
Before: SILER, GILMAN, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Stephenie N. Lape Wolfinbarger, STEPHENIE N. LAPE, PLLC, Cincinnati, Ohio,
for Appellant. John Patrick Grant, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
SILER, Circuit Judge. Defendant-Appellant Brian Keith Wells appeals his below-
Guidelines sentence, challenging the district court’s refusal to appoint substitute counsel, the
application of a four-level role enhancement to his Guidelines range, and the substantive
reasonableness of his sentence. For the following reasons, we AFFIRM.
No. 21-5890 United States v. Wells Page 2
I.
In 2020, a federal grand jury charged Wells and co-defendant Christina L. Tidwell in a
one-count indictment with conspiracy to distribute 500 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 846, from about November 2018 and continuing to about
February 2020. The court appointed counsel to represent Wells on May 14, 2020, and Wells
subsequently entered a plea of not guilty on May 19, 2020.
On July 20, 2020, Wells sent a letter to the court complaining about his court-appointed
counsel. His counsel moved to withdraw, and a magistrate judge granted the motion and
appointed new counsel on July 28, 2020. The court granted Wells’s motions to continue the
trial, and coupled with delays due to the COVID-19 pandemic, a trial was ultimately scheduled
for May 5, 2021.
At a hearing before the court on April 26, 2021, Wells pleaded guilty to the one count
charged in the indictment pursuant to a plea agreement. Wells admitted several facts outlined in
the Plea Agreement, including:
Specifically, during this timeframe [around November 2018 to around February
2020], the Defendant was obtaining multiple ounces of methamphetamine from a
source of supply based out of the Cincinnati, OH area, which he would then
distribute to street-level drug dealers and end drug users in Pike County, KY and
Mingo County, WV. At times, the Defendant would use runners or mules to
travel to Cincinnati, OH to obtain the meth and bring it back to him. In addition,
the codefendant, Christina Tidwell, assisted Wells in his distribution activities by
selling to the Defendant’s drug customers when he was not available.
Moreover, . . . Tidwell maintained and continued the Defendant’s distribution
activities on his behalf whenever he was incarcerated.
At the hearing, Wells admitted to the factual statements in the Plea Agreement and confirmed
their accuracy. Wells also assured the court that he had no complaints with his lawyer’s
performance and was not withholding any complaints against his counsel of which he was aware.
The court accepted Wells’s entry of a guilty plea, and scheduled sentencing for August 18, 2021.
Two months later, on June 23, 2021, Wells sent another letter to the court, seeking to
withdraw his guilty plea and requesting new counsel. Wells asserted in his letter that he was
“improperly misled by coun[s]el about the circumstances of the case,” and he was provided
No. 21-5890 United States v. Wells Page 3
“false information” about his case, leading to his acceptance of the Plea Agreement. On July 9,
2021, the court conducted an ex parte Iles/Benitez1 hearing to inquire about the relationship
between Wells and his counsel.
The court conducted a searching inquiry into Wells’s complaint and engaged with both
Wells and his counsel several times to unearth the reasons behind Wells’s letter. Wells’s counsel
indicated that he had not had any issues with Wells and thought they had an appropriate
relationship, meeting several times either by phone or in person up to and following the plea
hearing. However, Wells informed the court that he had initially wanted to go to trial “without
any doubt,” which he had told his counsel; but, he entered into the Plea Agreement “because [he]
was under the assumption that [he] was being charged with another charge,” and he did not find
out until the plea hearing “that it was only an investigation and not a charge.”
The court stated that it did not understand Wells’s complaint as Wells pleaded guilty to
the only count charged in the indictment. Counsel then explained that, following Wells’s arrest,
Wells had allegedly engaged in conduct that constituted material false statements to a federal
officer. The government informed Wells’s counsel that it was considering charging Wells as a
result, but if he accepted the Plea Agreement in the underlying case, the government would not
pursue this additional charge. The Plea Agreement reflected this compromise.
The court asked Wells again to explain his complaint. Wells remained adamant that he
only pleaded guilty because he thought the government was adding an additional charge for the
material false statement offense, and he did not understand that it was only an investigation until
after the plea hearing. However, the court concluded that Wells received the deal for which he
had bargained, and Wells confirmed with the court that he entered his guilty plea so he would
avoid facing these additional charges.
Wells then argued that he was not guilty of the conspiracy and only entered into the Plea
Agreement because it was in his “best interest.” Wells maintained that he was just trying “to get
the best deal [he] could get,” and was just “trying to do the least time [he could] do.”
1
Benitez v. United States, 521 F.3d 625 (6th Cir. 2008); United States v. Iles, 906 F.2d 1122 (6th Cir.
1990).
No. 21-5890 United States v. Wells Page 4
The court asked Wells if he was able to talk to his counsel, whether he understood his
counsel, and whether they were able to communicate with each other, all of which Wells
confirmed. Wells’s counsel then confirmed he was willing to continue the relationship. The
court ultimately found that none of Wells’s complaints formed a basis for substituting counsel, as
Wells received “precisely what he expected” and his status was “precisely what he negotiated it
to be post-plea.” The court determined that it was “not going to do a counsel change without a
basis showing the dissatisfaction. There is a public interest at play here. The matter comes up
two months post-plea, a month and a half prior to sentencing. That’s not a timely way to raise an
issue of this type.” For these reasons, the court denied Wells’s request to replace his counsel but
agreed to move the sentencing hearing to September so Wells and his counsel could confer on
the issues that arose during the hearing.
At sentencing, the court first addressed the Presentence Investigation Report (PSI),
including Wells’s objection to the Probation Officer’s recommendation to apply a four-level
enhancement under USSG § 3B1.1(a) for Wells’s alleged role as an organizer or leader of the
conspiracy. The government relied on the facts in the PSI and the factual statements in Wells’s
Plea Agreement to support the application of the enhancement under § 3B1.1(a). Specifically,
the government cited Wells’s admissions in the Plea Agreement that “he would use runners or
mules to travel to Cincinnati to obtain meth to bring back to him, which he distributed” and that
“his codefendant, Christina Tidwell, assisted him in distribution activities by selling to [Wells’s]
customers when he was not available.”
The court considered the factors listed in the commentary to § 3B1.1(a), including the
exercise of decision-making authority, the degree of participation, recruitment, and financial
stake. Based on these factors and the evidence presented before the court, specifically Wells’s
admissions in the Plea Agreement and the investigating officer’s corroborating testimony, the
court overruled Wells’s objection and applied the four-level enhancement under § 3B1.1(a).
The court determined that Wells had a total offense level of 33, with a criminal history category
of V, resulting in a Guidelines range of 210 to 262 months with a mandatory minimum of 120
months.
No. 21-5890 United States v. Wells Page 5
Wells’s counsel then indicated to the court that Wells had asked him not to argue
anything on his behalf. The court asked Wells why he took this position, and Wells responded,
“I’m just ready to get this over with.” The court recommended that Wells allow his counsel to
make an argument on his behalf, but Wells maintained his objection. However, Wells’s counsel
asked the court to consider the written arguments he had submitted and to sentence Wells to 120
months—that is, the statutory minimum and 90 months below the bottom of Wells’s Guidelines
range.
The court thoroughly considered the factors under 18 U.S.C. § 3553(a) and various
mitigating factors, as well as Wells’s request for a downward variance to the mandatory
minimum. It agreed with the government and Wells that it was fair to vary 13 months below the
Guidelines range for the period Wells was in custody following the issuance of the writ on the
present federal charge until the time an unrelated state sentence was discharged; however, it
found that a variance down to the statutory minimum was unwarranted. It sentenced Wells to
197 months of imprisonment followed by five years of supervised release.
II.
Wells presents three challenges on appeal: the court 1) erred in denying his request to
substitute counsel; 2) erred in applying the four-level role enhancement under § 3B1.1(a) to his
Guidelines range; and 3) improperly balanced the § 3553(a) factors and imposed a substantively
unreasonable sentence. We reject each one of Wells’s contentions in turn.
A. Wells’s Motion to Substitute Counsel
Wells first claims that the court erred in denying his second request to substitute counsel.
“[T]he Sixth Amendment is implicated where a criminal defendant seeks to change the status of
his representation.” Benitez, 521 F.3d at 631 (emphasis omitted). However, “the right to counsel
of choice is not absolute. An indigent defendant must show ‘good cause’ to warrant substitution
of counsel.” United States v. Chapman, 796 F. App’x 873, 876 (6th Cir. 2019) (quoting Iles, 906
F.2d at 1130–31).
No. 21-5890 United States v. Wells Page 6
We review a district court’s decision that an indigent defendant did not show good cause
to substitute counsel for an abuse of discretion. United States v. Marrero, 651 F.3d 453, 464 (6th
Cir. 2011). We consider the following four factors in determining whether the district court
abused its discretion in denying such a request:
(1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the
matter, (3) the extent of the conflict between the attorney and client and whether it
was so great that it resulted in a total lack of communication preventing an
adequate defense, and (4) the balancing of these factors with the public’s interest
in the prompt and efficient administration of justice.
United States v. Mack, 258 F.3d 548, 556 (6th Cir. 2001); see Marrero, 651 F.3d at 464.
With respect to the timing of Wells’s motion, “we have previously found motions for
new counsel untimely when the defendant claims to have been unhappy with counsel all along
but waits to file.” Chapman, 796 F. App’x at 877 (citing United States v. Jackson, 662 F. App’x
416, 423 (6th Cir. 2016)); see also United States v. Chambers, 441 F.3d 438, 447 (6th Cir. 2006)
(noting that the defendant “waited until just prior to trial to raise” his dissatisfaction with
counsel). Here, Wells claimed that he initially became unhappy about his entry into the Plea
Agreement following the plea hearing when he realized he was not being charged with any
additional offense, which was the basis for his complaint against his attorney. However, Wells
failed to submit his request for new counsel until two months after the plea hearing—and just
weeks ahead of the scheduled sentencing. Moreover, the court expressed its concerns with the
timelines of Wells’s request. See United States v. Gilliam, 384 F. App’x 497, 498 (6th Cir.
2010); cf. Chapman, 796 F. App’x at 877 (“[T]he district court did not express any concerns
about the timeliness of [the defendant’s] motion, a consideration that has weighed in favor of
finding a request timely.” (citing Marrero, 651 F.3d at 465)). Thus, the timing factor weighs
against Wells.
As to the adequacy of the court’s inquiry into Wells’s complaint, the transcript spanned
over 20 pages, and the court heard from both Wells and his counsel several times. See Chapman,
796 F. App’x at 878 (“The district court’s inquiry is adequate when it allows all of the interested
parties to present their respective evidence and arguments.” (quotation marks and citation
No. 21-5890 United States v. Wells Page 7
omitted)). Ultimately, the court was able to unearth that Wells was really just “trying to do the
least time [he could] do.”
The third factor—whether the extent of the conflict between the attorney and the
defendant was so great as to impede the communication between the parties—also weighs
against Wells. Wells’s counsel outlined the history between him and Wells leading up to the
hearing at issue and informed the court that there had not been any issues discussing Wells’s
charges or the proceedings during their several meetings. Counsel confirmed it was a cordial and
appropriate relationship. The court also specifically asked Wells whether he was able to talk to
his counsel, understand him, and communicate with him back and forth—all of which Wells
confirmed was true. Wells has not otherwise shown that the relationship was hindered due to the
alleged conflict or that there was any lack of communication, see id. at 881–82, and he did not
raise the issue again at the sentencing hearing.2
Finally, the court determined that there was “a public interest at play here.” This was
Wells’s second request for a third, new attorney, and it came just weeks before the sentencing
hearing. Moreover, his complaint appeared to be one of either misunderstanding the
government’s discretionary authority to charge additional offenses or buyer’s remorse—he
pleaded guilty to avoid additional charges for allegedly making material false statements to a law
enforcement officer but then complained to the court that no further charges were being pursued,
which was the exact benefit for which he bargained. Replacing counsel at that stage due to either
2
On appeal, as a final argument, Wells asserts that his adamance at sentencing to not have his counsel
provide argument, coupled with his June 23, 2021 letter requesting new counsel, “should have triggered an
additional Iles/Benitez inquiry” by the district court. Wells relies on Benitez, where this court found that, even
though the defendant did not indicate he wanted new counsel, he did indicate that he did not want his counsel to
represent him any further at the sentencing hearing, which was sufficient to trigger an inquiry under the Sixth
Amendment as to the source and nature of the defendant’s dissatisfaction with his counsel. 521 F.3d at 631–36.
However, unlike in that case where the defendant repeatedly indicated at the sentencing hearing that he did not want
his counsel to represent him, in this case, Wells simply expressed his frustration with the proceedings generally,
indicating he did not want his counsel to argue on his behalf because he was “just ready to get this over with.”
Wells then proceeded to refuse to offer anything further on his own behalf. Accordingly, Wells’s statements at the
sentencing hearing were insufficient to put the court on notice that he remained dissatisfied with his counsel, as he
did not “try to ‘fire’ his counsel, ask for new counsel, or suggest that he wished to conduct his own defense.” See
Iles, 906 F.2d at 1131. In any event, even if the district court should have inquired further into the extent of any
additional or continued conflict between Wells and his attorney, Wells’s statements at the sentencing hearing were
untimely and “changing counsel in the middle of [Wells’s] sentencing hearing would have further delayed the
proceedings, a reality at odds with the public’s interest in the prompt administration of justice.” United States
v. Jones, Nos. 21-5493/5494, 2022 WL 2375730, at *4 (6th Cir. June 30, 2022).
No. 21-5890 United States v. Wells Page 8
Wells’s misunderstanding or his remorse, rather than a disagreement with his counsel, likely
“would have thwarted the prompt and efficient administration of justice,” just weeks ahead of the
scheduled sentencing. United States v. Clark, 328 F. App’x 992, 999 (6th Cir. 2009); see United
States v. Saldivar-Trujillo, 380 F.3d 274, 278 (6th Cir. 2004).
Because all of the Mack factors weigh against Wells, we find that the district court did
not abuse its discretion in denying his motion to substitute counsel for lack of good cause.
B. Application of the Four-Level Enhancement to Wells’s Guidelines Range
Wells next claims that the evidence presented before the court was insufficient to support
the application of the four-level role enhancement to his Guidelines range under § 3B1.1(a). Our
review of the district court’s “legal conclusion that a person is an organizer or leader under
Section 3B1.1 is . . . deferential.” United States v. Washington, 715 F.3d 975, 983 (6th Cir.
2013). We review the district court’s factual findings for clear error. See United States
v. Wright, 747 F.3d 399, 412 (6th Cir. 2014).
The Sentencing Guidelines provide that a four-level enhancement is appropriate “[i]f the
defendant was an organizer or leader of a criminal activity that involved five or more participants
or was otherwise extensive.” § 3B1.1(a). We consider the several factors listed in the
commentary to § 3B1.1 to determine whether the district court properly found that a defendant
served as a leader or organizer of the criminal activity. § 3B1.1 cmt. n.4; see United States
v. Arrechavaleta, 851 F. App’x 570, 573 (6th Cir. 2021) (quoting United States v. Hernandez,
227 F.3d 686, 699–700 (6th Cir. 2000)). Moreover, more than one individual may qualify as a
leader or organizer of the conspiracy. See § 3B1.1 cmt. n.4; Washington, 715 F.3d at 984. “A
defendant only needs to be a leader of ‘one or more other participants’ to qualify for the
enhancement.” Washington, 715 F.3d at 983 (quoting § 3B1.1 cmt. n.2).
The government must establish by a preponderance of the evidence that the leadership
enhancement under § 3B1.1(a) applies. United States v. Hills, 27 F.4th 1155, 1198–99 (6th Cir.
2022). We have held that “[c]oncessions in a plea agreement are sufficient to support a § 3B1.1
enhancement.” United States v. Ashiq, 307 F. App’x 913, 916 (6th Cir. 2009) (collecting cases).
No. 21-5890 United States v. Wells Page 9
Wells largely relies on his incarceration for all but one month of the alleged duration of
the conspiracy to support his claim that the evidence failed to establish that he was an organizer
or leader of the conspiracy. He also claims that the government failed to produce evidence of
any discussion of the division of the profits or that he had ever paid anyone to aid him in the
conspiracy. He further points to the several phone calls between him and his co-defendant,
Tidwell, while he was in custody, arguing that none of the calls established that Wells was
providing Tidwell with directions or was making any decisions in support of the conspiracy. He
claims that the evidence tends to show that Tidwell was more of an equal or a partner in the
activity, but Tidwell did not receive any role enhancement. In all, Wells contends that the
evidence is similar to that produced in United States v. Walker, where we found that the evidence
was insufficient to support the application of the role enhancement. 160 F.3d 1078, 1091–92
(6th Cir. 1998).
However, Wells’s reliance on Walker is misplaced. In Walker, we found that no witness
had ever indicated that the defendant engaged in any organizational role, “either administratively
(by setting up deals or keeping track of people’s salaries, as it were), or by actually directing the
action.” Id. at 1091. Furthermore, there was no evidence that the defendant “direct[ed] anyone
to do anything.” Id. at 1091–92. Conversely, in this case, relying on both the factual statements
to which Wells admitted in the Plea Agreement and the investigating officer’s testimony, the
court found that Wells exercised decision-making authority over at least three of his
coconspirators; recruited others through the use of runners and mules; had a financial incentive
as “runners and mules are not really economic participants;” and participated in the planning and
organizing of the conspiracy. Moreover, the court appropriately rejected Wells’s argument that
his incarceration disproved any alleged leadership or organizational role as he admitted in the
Plea Agreement that he conspired with the others from 2018 to 2020. He also admitted in the
Plea Agreement that Tidwell carried out his distribution activities when he was unavailable—and
incarcerated.
The court’s findings were not clearly erroneous based on the evidence presented before it,
namely Wells’s concessions in the Plea Agreement and the investigating officer’s testimony at
the sentencing hearing, and we defer to the court’s legal conclusion that Wells served as a leader
No. 21-5890 United States v. Wells Page 10
or organizer of the conspiracy. See United States v. Polly, 385 F. App’x 454, 459–60 (6th Cir.
2010) (concluding similarly that the defendant’s reliance on Walker was “inapposite” given the
defendant’s admissions in the plea agreement). Accordingly, we uphold the court’s application
of the four-level enhancement under § 3B1.1(a).
C. Substantive Reasonableness of Wells’s Below-Guidelines Sentence
Finally, Wells maintains that the court’s sentence of 197 months of imprisonment—a
sentence 13 months below his Guidelines range of 210 to 262 months—is substantively
unreasonable. We review the substantive reasonableness of a district court’s sentence for abuse
of discretion. United States v. Greco, 734 F.3d 441, 444 (6th Cir. 2013). “A defendant
challenging a below-guidelines sentence as substantively unreasonable bears an ‘even more
demanding’ burden than does a defendant challenging a within-guidelines sentence.” United
States v. Cornejo-Jimenez, 563 F. App’x 480, 481 (6th Cir. 2014) (quoting United States
v. Curry, 536 F.3d 571, 573 (6th Cir. 2008)).
Wells points to Tidwell’s substantially lower sentence of 78 months to prove that his
sentence is substantively unreasonable. He also maintains that, as to the § 3553(a) factors, “the
district court focused almost entirely on the nature of the offense and placed very little weight on
other mitigating factors.”
Wells’s disparity argument is unavailing. We have held that “[s]ubsection 3553(a)(6) is
concerned with national disparities among the many defendants with similar criminal
backgrounds convicted of similar criminal conduct.” United States v. Simmons, 501 F.3d 620,
623 (6th Cir. 2007). Even between co-defendants, § 3553(a)(6) “is not concerned with
disparities between one individual’s sentence and another individual’s sentence.” Id. Like the
defendant in Simmons, there is no evidence in the record that Wells’s sentence does not conform
with national standards, and Wells fails to present any such evidence here. See id. at 626. In any
event, as Wells himself acknowledges, Tidwell pleaded guilty to a lesser-included offense, and,
unlike Wells, she did not receive an enhancement to her Guidelines range for her role in the
conspiracy. See Greco, 734 F.3d at 450–51; United States v. Wright, 991 F.3d 717, 720 (6th Cir.
2021).
No. 21-5890 United States v. Wells Page 11
The court also carefully outlined the relevant § 3553(a) factors and their application in
this matter. Contrary to Wells’s contention on appeal, the court weighed several mitigating
factors, including Wells’s employment and education history, a relatively clean period of
criminal conduct from 2011 to 2016, and a background of minimal violence. Despite Wells’s
refusal to argue on his own behalf, or allow his counsel to do so, the district court varied below
the Guidelines range by 13 months. However, it explicitly rejected Wells’s request to vary 90
months below the minimum of his Guidelines range to the statutory minimum of 120 months
given Wells’s “criminal history category, the role in the case, the conduct on supervision, the
quantity at issue and the felony trafficking recidivism.”
Accordingly, Wells has failed to carry his heavy burden of establishing that his below-
Guidelines sentence is substantively unreasonable. We find that the court did not abuse its
discretion in sentencing Wells to 197 months of imprisonment.
AFFIRMED.