United States v. Norman West ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0182p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-6106
v. │
│
│
NORMAN DAVID WEST, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 5:18-cr-00144-4—Gregory F. Van Tatenhove, District Judge.
Decided and Filed: June 12, 2020
Before: GILMAN, KETHLEDGE, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Edward M. Thompson, THOMPSON LAW OFFICE, Lexington, Kentucky, for
Appellant. Charles P. Wisdom, Jr., Lauren Tanner Bradley, UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Norman David West pleaded guilty to
knowingly and intentionally distributing methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1). At West’s sentencing hearing, the district court imposed a sentence of 40 months’
imprisonment.
No. 19-6106 United States v. West Page 2
West now appeals his sentence. He argues that the district court incorrectly applied the
two-level enhancement under United States Sentencing Guidelines (U.S.S.G.) § 2D1.1(b)(1) for
the possession of a firearm during a drug-related offense. West also contends that the 40-month
sentence was unreasonable under the factors enumerated in 18 U.S.C. § 3553(a). For the reasons
set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
Law enforcement in Madison County, Kentucky began investigating West for
distributing methamphetamine in November 2017. In February 2018, they used a confidential
informant to buy methamphetamine from West in a Walmart restroom. The confidential
informant purchased 14.18 grams of methamphetamine from West in exchange for $300.
Two months later, in April 2018, law enforcement arranged a controlled buy from West
using the same confidential informant. This time, the informant met West inside a Meijer
supermarket restroom. West gave the informant what later proved to be 116.112 grams of
simulated methamphetamine—Epsom salts—for $900.
Upon exiting the Meijer supermarket, West entered the rear passenger side of a vehicle in
which the driver’s seat was occupied by Erroll Johnson. Erroll Johnson’s romantic partner,
Jeanetta Johnson, sat in the front passenger seat. (Erroll Johnson and Jeanetta Johnson share the
same last name but are unrelated.) Law enforcement stopped and searched the vehicle,
discovering a Glock .22 semiautomatic pistol under the front passenger seat.
The investigation ultimately led to two charges being brought against West in an
indictment: one for knowingly and intentionally distributing methamphetamine in February
2018, in violation of 21 U.S.C. § 841(a)(1), and the other for being a felon in possession of a
firearm in April 2018, in violation of 18 U.S.C. § 922(g)(1). West pleaded guilty to the
methamphetamine-distribution charge, but not to the felon-in-possession charge. The
government then moved to dismiss the felon-in-possession charge as part of the plea agreement
with West.
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Even though West did not plead guilty to possessing a firearm during the April 2018
transaction, the issue of the gun became relevant at sentencing. The district court determined
that West’s base offense level should be increased by two levels pursuant to U.S.S.G.
§ 2D1.1(b)(1) because a firearm was possessed in relation to West’s drug-related offense.
Factoring in this enhancement, the recommended Guidelines range was a sentence of between 37
and 46 months of imprisonment. The district court imposed a within-Guidelines sentence of 40
months.
West appeals the application of the U.S.S.G. § 2D1.1(b)(1) enhancement to his sentence,
arguing (1) that the district court abused its discretion in determining that he possessed the gun
found in the vehicle after the April 2018 transaction, and (2) that the transaction was not
“relevant conduct” under U.S.S.G. § 1B1.3(a)(2). He also contends that the district court did not
adequately consider the factors enumerated under 18 § U.S.C. 3553(a) in determining the 40-
month length of his sentence.
II. ANALYSIS
A. Standard of review
We review findings of fact made at sentencing under the clear-error standard. United
States v. Orlando, 363 F.3d 596, 600 (6th Cir. 2004) Under this standard, “a reviewing court
must ask whether on the entire evidence it is left with the definite and firm conviction that a
mistake has been committed.” Id. at 603 (citation and internal quotation marks omitted). We
review the district court’s interpretation of the Sentencing Guidelines de novo. Id. at 600.
Challenges to the substantive and procedural reasonableness of a defendant’s sentence
are reviewed under the abuse-of-discretion standard. United States v. Rayyan, 885 F.3d 436,
440, 442 (6th Cir. 2018). When a sentence falls within the range recommended by the
Sentencing Guidelines—as did West’s—we presume that the sentence was reasonable. United
States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).
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B. The enhancement under U.S.S.G. § 2D1.1(b)(1)
U.S.S.G. § 2D1.1(b)(1) authorizes district courts to apply a two-level enhancement to the
offense level for a drug-related conviction “[i]f a dangerous weapon (including a firearm) was
possessed.” “The enhancement should be applied if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.11(A).
“To apply the enhancement under section 2D1.1(b)(1), the government must establish
that (1) the defendant actually or constructively possessed the weapon, and (2) such possession
was during the commission of the offense.” United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.
1996) (citation and internal quotation marks omitted). These elements must be proven by a
preponderance of the evidence. United States v. McCloud, 935 F.3d 527, 531 (6th Cir. 2019).
As to the first element of whether a weapon was possessed, this is a factual finding that
we review under the clear-error standard. United States v. Pryor, 842 F.3d 441, 452 (6th Cir.
2016). “Constructive possession of an item is the ownership, or dominion or control over the
item itself, or dominion over the premises where the item is located.” Hill, 79 F.3d at 1485(citation and internal quotation marks omitted).
Regarding the second element of whether the possession of a weapon occurred during the
commission of the drug offense, this court has clarified that the weapon need not be possessed
during the commission of the actual offense of conviction. United States v. Faison, 339 F.3d
518, 520 (6th Cir. 2003). Rather, “all that the government need show is that the dangerous
weapon be possessed during ‘relevant conduct.’” Id. Whether the April 2018 transaction counts
as “relevant conduct” to the February 2018 drug-possession charge is a question of law that we
review de novo. See Hill, 79 F.3d at 1481.
“Relevant conduct,” in turn, is defined under U.S.S.G. § 1B1.3. The applicable
subsection of this Guideline, U.S.S.G. § 1B1.3(a)(2), provides that, “solely with respect to
offenses of a character for which § 3D1.2(d) would require grouping of multiple counts,”
relevant conduct includes “all acts and omissions . . . that were part of the same course of
conduct or common scheme or plan as the offense of conviction.”
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Offenses “qualify as part of the same course of conduct if they are sufficiently connected
or related to each other as to warrant the conclusion that they are part of a single episode, spree,
or ongoing series of offenses.” U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). The sentencing court must
consider “the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and
the time interval between the offenses” in assessing whether offenses occurred during the same
course of conduct. Id. On the other hand, “[f]or two or more offenses to constitute part of a
common scheme or plan, they must be substantially connected to each other by at least one
common factor, such as common victims, common accomplices, common purpose, or
similar modus operandi.” U.S.S.G. § 1B1.3 cmt. n.5(B)(i).
Once the government shows that the defendant possessed a weapon during relevant
conduct, a presumption arises that the weapon was connected with the offense of conviction.
United States v. Moreno, 899 F.2d 465, 470 (6th Cir. 1990). The defendant may overcome this
presumption only upon demonstrating that “it is clearly improbable that the weapon was
connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.11(A).
1. Whether West possessed the weapon
West first challenges the district court’s factual finding that he possessed the weapon
found in the vehicle being driven by Erroll Johnson in April 2018. He argues that the only
evidence showing that he possessed the gun was hearsay testimony from Jeanetta Johnson (the
front-seat passenger), which was relayed to the court by Officer Hunter Harrison, the law-
enforcement officer who initiated the traffic stop. According to Officer Harrison, Jeanetta
Johnson informed the officer that West “stated that he had a gun on him and needed to get rid of
it” after West entered the car outside the Meijer supermarket. Because all three of the occupants
of the vehicle denied ownership of the gun, Officer Harrison relied in part on Jeanetta Johnson’s
statement in charging West with possession of the weapon.
West contends that this evidence was unreliable because Jeannetta Johnson was in a
romantic relationship with Erroll Johnson, the driver of the car. (Impliedly, Jeanetta Johnson
sought to protect Erroll Johnson by implicating West.) He also points to the fact that Erroll
Johnson, who was charged with joint possession of the firearm found in the vehicle, claimed to
No. 19-6106 United States v. West Page 6
have no knowledge of the gun or who owned it. Absent the hearsay evidence, West contends,
there was no proof that he had knowledge of the presence of the gun under the front passenger
seat.
But these arguments do not compel us to overturn the district court’s factual finding
under the clear-error standard. Hearsay evidence, such as Jeanetta’s Johnson’s statement, may
be relied upon by the sentencing court. United States v. Armstrong, 920 F.3d 395, 398 (6th Cir.
2019) (explaining that district courts may consider hearsay evidence at sentencing “[s]o long as
the information has some evidentiary basis to satisfy a minimal indicium of reliability” (citation
and internal quotation marks omitted) (emphasis in original)). Officer Harrison testified that he
believed that Jeanetta Johnson had been truthful in her account, and he explained that she had
been “Mirandized” and was not herself prohibited from possessing a firearm. Furthermore, he
testified that the gun was within West’s reach under the front passenger seat. This evidence
overcomes the “relatively low hurdle” of the indicia-of-reliability standard. See id. (citation
omitted). We are therefore not left with the “definite and firm conviction” that the district court
erred in finding that West possessed the gun. See United States v. Orlando, 363 F.3d 596, 603
(6th Cir. 2004) (citation omitted).
2. Whether the weapon was possessed during “relevant conduct”
We now turn to the question of whether the April 2018 transaction was “relevant
conduct” as defined by U.S.S.G. § 1B1.3(a)(2). For West’s April 2018 transaction to be
“relevant,” his actions must “amount to an offense for which a criminal defendant could
potentially be incarcerated,” although the relevant conduct need not lead to a conviction. See
United States v. Henry, 819 F.3d 856, 865 (6th Cir. 2016) (citation, brackets, and internal
quotation marks omitted). Moreover, “state offenses may qualify as ‘relevant conduct’
under U.S.S.G. § 1B1.3(a)(2).” United States v. Maken, 510 F.3d 654, 657 (6th Cir. 2007); see
also United States v. Hough, 276 F.3d 884, 898 (6th Cir. 2002) (explaining that “a federal district
court may consider any relevant conduct when sentencing a defendant, whether or not the
conduct is a federal crime” (citation omitted)).
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The government argues that the April 2018 transaction was a drug offense for which
West could have been incarcerated under Kentucky state law. It cites Kentucky Revised Statute
§ 218A.350(1), which provides that “[n]o person shall sell or transfer any substance, other than a
controlled substance, with the representation or upon creation of an impression that the substance
which is sold or transferred is a controlled substance.” This offense constitutes a Class A
misdemeanor in Kentucky, carrying a penalty of up to 12 months’ imprisonment. Ky. Rev. Stat.
Ann. §§ 218A.350(7)(a), 532.090. The April 2018 Epsom salts transaction therefore meets the
threshold requirement to be relevant conduct, even though it was both uncharged and a state
offense only.
We must next consider whether the April 2018 transaction qualifies as either (1) part of
the same “course of conduct,” or (2) part of a “common scheme or plan” as the February 2018
drug transaction. See U.S.S.G. § 1B1.3(a)(2). West argues that the April 2018 transaction was
not part of the same course of conduct as the February 2018 drug transaction because the two
events cannot be considered “regular” and because a two-month time interval separated them.
He does not address, however, the district court’s reasoning that the February and April
transactions were part of a common scheme or plan. As the district court pointed out, the
transactions involved a common victim (the confidential informant), a common purpose (for
West to receive money from illicit transactions), and a similar modus operandi (conducting the
illicit transactions from Walmart or Meijer restrooms).
We agree with the district court’s reasoning and conclude that the April 2018 transaction
took place as part of the same common scheme or plan as the February 2018 transaction. The
February and April transactions were substantially connected by not just one, but three, common
factors. See, e.g., United States v. McCloud, 935 F.3d 527, 532 (6th Cir. 2019) (concluding that
two drug sales had the common purpose of “distribut[ing] drugs”); Henry, 819 F.3d at 865
(determining that illegal firearm sales were part of a common scheme or plan where “the same
location was used” and “the same parties were present at the sales”).
Linking the two transactions is fully consistent with the reason for the enhancement
under U.S.S.G. § 2D1.1(b)(1), which “reflects the increased danger of violence when drug
traffickers possess weapons.” U.S.S.G. § 2D1.1 cmt. n.11(A). Possessing a gun while
No. 19-6106 United States v. West Page 8
trafficking simulated drugs involves no less danger than possessing a gun while trafficking
genuine methamphetamine. And perhaps there is even more of a danger because a deceived drug
purchaser is far more likely to angrily confront the selling drug dealer than a purchaser who gets
what he paid for.
Based on our conclusion that the April 2018 transaction was part of the same common
scheme or plan as the February 2018 transaction, we have no need to address whether the
transactions were part of the same course of conduct. See McCloud, 935 F.3d at 533 (explaining
that whether conduct is part of a common scheme or plan “is an alternative basis for a finding of
relevant conduct that is not subject to the same-course-of-conduct factors” (emphasis omitted)).
West’s final argument on this issue is that any potential criminal offense committed by
him during the April 2018 transaction would not be “groupable” with the drug offense for which
he was convicted. Indeed, U.S.S.G. § 1B1.3(a)(2) applies “solely with respect to offenses of a
character for which § 3D1.2(d) would require grouping of multiple counts.” U.S.S.G.
§ 3D1.2(d), in turn, applies
[w]hen the offense level is determined largely on the basis of the total amount of
harm or loss, the quantity of a substance involved, or some other measure of
aggregate harm, or if the offense behavior is ongoing or continuous in nature and
the offense guideline is written to cover such behavior.
The subsection then lists specified federal offenses that are “groupable” under this category.
West’s offense of conviction—distributing methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1)—is listed as a groupable offense under U.S.S.G. § 3D1.2(d). His putative Epsom
salts offense under Kentucky Revised Statutes § 218A.350 is not.
But this court has explained that U.S.S.G. § 1B1.3(a)(2) “is not concerned with whether
the relevant conduct would be grouped with the offense conduct.” United States v. Hodge, 805
F.3d 675, 682 (6th Cir. 2015) (emphasis in original). Rather, “[§] 1B1.3(a)(2) simply says its
provisions apply to groupable ‘offenses,’ and then authorizes courts to consider other acts that
‘were part of the same course of conduct or common scheme or plan as the offense of
conviction.’” Id. Relevant conduct may therefore include violations of state law not listed as
groupable under U.S.S.G. § 3D1.2(d). See, e.g., United States v. Maken, 510 F.3d 654, 659 (6th
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Cir. 2007) (determining that a state tax offense was relevant conduct under § 1B1.3(a)(2));
United States v. Bandy, 172 F.3d 49, 1999 WL 17646, at *3 (6th Cir. 1999) (table) (determining
that the state offense of mail theft was relevant without assessing whether it grouped with the
underlying federal offense of conviction).
We therefore conclude that the district court did not err in considering West’s April 2018
transaction to be relevant conduct under the Guidelines. As such, we find no error in the
application of the enhancement under U.S.S.G. § 2D1.1(b)(1) to West’s sentence.
C. The reasonableness of West’s sentence under 18 U.S.C. § 3553(a)
West next challenges the length of his sentence, arguing that the 40 months of
imprisonment imposed by the district court was “truly greater than necessary.” West specifically
argues that the district court did not give enough consideration to West’s history and
characteristics under 18 U.S.C. § 3553(a)(1) and to West’s need for correctional treatment under
18 U.S.C. § 3553(a)(2)(D) in reaching the 40-month sentence. He asserts that, because he is a
drug addict in need of treatment, a shorter sentence with a period of drug rehabilitation would be
more appropriate.
West does not make clear whether he challenges the procedural or the substantive
reasonableness of his sentence. His claim that the district court did not adequately consider his
need for correctional treatment under 18 U.S.C. § 3553(a)(2)(D) may be construed as a
procedural challenge. See United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)
(explaining that whether the district court failed to consider a factor is a question of procedural
reasonableness). This claim is subject to plain-error review because West did not raise the
objection before the district court. See United States v. Bailey, 488 F.3d 363, 368 (6th Cir.
2007). West’s challenge to the length of his sentence, on the other hand, is a claim that his
sentence was substantively unreasonable. See Rayyan, 885 F.3d at 442 (“A claim that a
sentence is substantively unreasonable is a claim that a sentence is too long (if a defendant
appeals).”).
No. 19-6106 United States v. West Page 10
Regarding West’s procedural challenge, the record shows that the district court did
indeed weigh West’s need for drug rehabilitation in handing down West’s sentence.
Specifically, the court explained that the need for treatment was “one of the biggest issues for
[West],” and it recommended that West participate in a residential drug-treatment program
during his period of incarceration. The record thus shows no plain error.
As for West’s argument that the district court imposed an unreasonably long sentence, his
argument “ultimately boils down to an assertion that the district court should have balanced the
§ 3553(a) factors differently.” United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008). But
such arguments are “simply beyond the scope of our appellate review, which looks to whether
the sentence is reasonable, as opposed to whether in the first instance we would have imposed
the same sentence.” Id. (citation omitted). Indeed, this court has explained that “[t]he fact that
the district court did not give the defendant the exact sentence he sought is not a cognizable basis
to appeal, particularly where the district court followed the mandate of § 3553(a) in all relevant
respects.” United States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006) (citation omitted). West’s
desire for a shorter sentence is understandable, but the district court did not abuse its discretion
in imposing a sentence within the relevant Guidelines range.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.