United States v. Schilo Cantrell ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0163n.06
No. 19-5391
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Mar 18, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
SCHILO W. CANTRELL, aka Shilo W. ) KENTUCKY
Cantrell, )
)
Defendant-Appellant. )
BEFORE: MERRITT, MOORE, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge. When a police officer attempted to pull over the vehicle in
which Schilo Wayne Cantrell was riding, the driver attempted to elude the officer and, after the
vehicle finally came to a stop, Cantrell attempted to flee on foot. In the vehicle? Both drugs and
a gun. A jury convicted Cantrell of two drug-trafficking crimes and two firearm-related crimes,
and the district court sentenced him to a below-guidelines sentence of 352 months. On appeal, we
consider whether sufficient evidence supported three of Cantrell’s convictions, whether the district
court properly admitted a police officer’s opinion about the drug conspiracy, and whether
Cantrell’s sentence is procedurally and substantively reasonable. Finding no error, we affirm.
No. 19-5391, United States v. Cantrell
I
On March 16, 2018, Joshua Ison, a Morehead, Kentucky police officer, responded to a 911
call reporting that a man armed with a handgun was threatening a woman at a Days Inn motel.
The caller described a black Lincoln Navigator that had left the scene. En route to the Days Inn,
Ison noticed the Lincoln Navigator driving away, so he began to follow it with lights flashing. The
Navigator immediately accelerated and attempted to outrun Ison’s patrol car, but the car chase
soon ended when the Navigator approached a dead end in a parking lot.
Near the end of that chase, but before the Navigator had completely stopped, Cantrell
opened the rear driver-side door and hung his foot out of the vehicle as if preparing to run. Once
the Navigator stopped, Cantrell immediately exited and attempted to flee. Ison drew his gun,
saying: “Police. Stop. Show me your hands. Get on the ground.” Cantrell hesitated, then jumped
back into the Navigator. Ison could partially see him rummaging around inside the vehicle.
Cantrell and the Navigator’s two other occupants exited the vehicle and, after additional officers
arrived, were taken into custody. Ison approached the Navigator to ensure that nobody else was
inside. He saw a pistol box in the front, many small ziplock bags inside a “woman’s satchel” on
the backseat floor, and drug paraphernalia in the center console.
Ison spoke with the Navigator’s occupants. Cantrell admitted to arguing with a woman at
the Days Inn but denied using a gun. The other two arrestees—Mark Lockwood, the Navigator’s
owner and driver, and Jessica DeBarr, the front-seat passenger—told the same story. All three
denied that the Navigator contained drugs or anything else illegal. Ison found evidence suggesting
otherwise: Lockwood had several hundred dollars and two small bags containing a crystal sub-
stance that appeared to be methamphetamine on his person, Cantrell had a syringe on his person,
and both Cantrell and DeBarr appeared to be under the influence of drugs.
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Armed with this information, Ison obtained a warrant to search the Navigator. He found
the following items stuffed inside a gap between the back seats where Cantrell had been sitting: a
Taurus 9-millimeter handgun with a chambered round and a full or nearly full magazine, a crystal
substance that appeared to be methamphetamine, and a powdery substance that appeared to be
heroin, fentanyl, or cocaine. Ison also found on the back-seat floor a McDonald’s bag with “a very
large quantity” of what looked like methamphetamine inside, a large set of digital scales, a box
containing more small ziplock bags, two smaller sets of digital scales, and a plastic-wrapped pack-
age containing yet more apparent methamphetamine.
Ison next obtained a warrant to search the adjoining motel rooms (Rooms 201 and 202) at
the Days Inn where Cantrell and the others had been staying. Room 201 contained nothing in-
criminating, but Room 202 contained needles, syringes, and a small plastic bag containing what
looked like more methamphetamine.
The United States indicted Cantrell, DeBarr, and Lockwood. It charged Cantrell with con-
spiring to distribute 50 grams or more of a mixture or substance containing methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1); possessing with intent to distribute 50
grams or more of a mixture or substance containing methamphetamine (or aiding and abetting the
others in doing so), in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2); possessing
a firearm in furtherance of one or both of these drug-trafficking crimes, in violation of 18 U.S.C.
§ 924(c)(1) (Count 3); and being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (Count 4).
The government presented testimony from Officer Ison and three other witnesses at trial.
The first of these witnesses, a forensic analyst at the Kentucky State Police crime lab, testified that
she tested two of the substances seized from the Navigator’s backseat area. One substance weighed
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No. 19-5391, United States v. Cantrell
about 7.75 grams and contained methamphetamine; the other weighed about 150 grams and also
contained methamphetamine.
The second witness, one of Cantrell’s distant relatives, testified that she bought a Taurus
9-millimeter handgun for a cheap price at a pawn shop in March 2018. A few days later she visited
Cantrell at the Days Inn, where he was then staying. Cantrell offered to buy the handgun from her
for about $100 more than she had paid for it, so she sold him the gun. She identified the handgun
found in the Navigator as the one she had sold to Cantrell.
The third witness was Matthew Dawkins, a police officer with nearly eight years’ experi-
ence on the Drug Enforcement Agency Task Force in Lexington, Kentucky. Dawkins explained
how drug-trafficking rings operate. He noted that traffickers make more money when they divide
large quantities of drugs into single-use doses of a gram or half a gram, that they commonly use
digital scales to prepare the smaller doses, and that they often package the doses in “small little
ziplock bags.” Dawkins opined that a typical drug user might carry a gram or two, but anyone
carrying “30 grams, 40 grams, 50 grams” or more is “usually trafficking.” He also testified that
traffickers frequently use firearms—most often small handguns that are ready to fire—to protect
their money and drugs. And he added that traffickers often work out of connected (or at least
adjoining) motel rooms, “one room to sell dope, one room to cut it up and work.” Dawkins con-
cluded that “everything about this case leans towards trafficking in narcotics.”
The jury convicted Cantrell on all counts. Cantrell’s guidelines range was 360 months to
life for Counts 1 and 2 (the drug-trafficking counts) and 120 months for Count 4 (the felon-in-
possession count). These sentences could run concurrently with each other. But 18 U.S.C.
§ 924(c) required an additional consecutive sentence of 60 months for Count 3 (possessing a fire-
arm in furtherance of a drug-trafficking offense), which raised Cantrell’s final guidelines range to
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420 months to life. The district court varied significantly downward. It sentenced Cantrell to 352
months in prison followed by eight years of supervised release.
II
Cantrell raises two arguments attacking his conviction and two attacking his sentence.
A
Cantrell first challenges the sufficiency of the evidence supporting his two drug convictions
(Counts 1 and 2) and his conviction for possessing a firearm in furtherance of a drug-trafficking
offense (Count 3). (He concedes that sufficient evidence supported his felon-in-possession con-
viction charged in Count 4.) Cantrell bears a “very heavy burden” to succeed on this type of
challenge. United States v. Garcia, 758 F.3d 714, 718 (6th Cir. 2014) (citation omitted). “Criminal
defendants have a due-process right not to be convicted of a crime ‘except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime for which they are charged.’”
Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018) (quoting In re Winship, 397 U.S. 358,
364 (1970)) (alteration omitted). But courts defer to the jury’s finding of guilt. See Jackson v.
Virginia, 443 U.S. 307, 318–19 (1979). The question is not whether we are persuaded that a de-
fendant is guilty. Id. Rather, the question is “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.” Id. at 319. Cantrell cannot make this showing.
Start with Cantrell’s drug convictions. For the government to prove the drug-conspiracy
count (Count 1), many of our cases say that it needed to establish three elements: “(1) an agreement
to violate drug laws, in this case 21 U.S.C. § 841; (2) [Cantrell’s] knowledge and intent to join the
conspiracy; and (3) [his] participation in the conspiracy.” E.g., United States v. Sliwo, 620 F.3d
630, 633 (6th Cir. 2010). Yet the jury instructions in this case, following our model jury
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No. 19-5391, United States v. Cantrell
instructions, identified only two elements for the government to prove: (1) two or more persons
agreed to distribute drugs and (2) Cantrell knowingly and voluntarily joined the conspiracy. We
have explained that merely a “semantic difference” divides these separate tests because our
caselaw’s participation element requires only that a defendant join the conspiracy. See United
States v. Potter, 927 F.3d 446, 453 (6th Cir. 2019). To prove an agreement, moreover, the gov-
ernment did not need to “prove the existence of a formal or express agreement among the con-
spirators”; “a tacit or mutual understanding among the conspirators is sufficient.” United States v.
Gardner, 488 F.3d 700, 710 (6th Cir. 2007). And “once the existence [of] a conspiracy is shown,
the evidence linking an individual to that conspiracy need only be slight.” United States v. Caver,
470 F.3d 220, 233 (6th Cir. 2006).
To establish the drug-possession count (Count 2), the government needed to prove that
Cantrell “(1) knowingly or intentionally (2) possessed a controlled substance (3) with intent to
distribute.” United States v. Hampton, 769 F. App’x 308, 310 (6th Cir. 2019) (citing United States
v. Coffee, 434 F.3d 887, 897 (6th Cir. 2006); United States v. Monger, 185 F.3d 574, 576 n.2 (6th
Cir. 1999)). Possession need not be “actual”; “constructive” or “joint” possession suffices. United
States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006). And the government alternatively charged
Cantrell with aiding and abetting DeBarr and Lockwood in their possession of drugs with an intent
to distribute. To establish this aiding-and-abetting liability, the government could alternatively
show that Cantrell “knew that [Debarr and Lockwood] possessed more than 50 grams of [meth-
amphetamine] with the intent to distribute it, and that [he] assisted in their plan to deliver the”
drugs. Id. This theory would not require the government to “prove that [Cantrell] actually or
constructively possessed” the methamphetamine. Id.
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No. 19-5391, United States v. Cantrell
The government presented sufficient evidence to support the elements for both of these
drug convictions. The evidence showed that the Lincoln Navigator contained a loaded gun, large
quantities of drugs that indicated trafficking rather than individual use, three sets of digital scales,
and large quantities of small ziplock bags of the kind drug traffickers often use to package drugs
for individual use. The evidence also showed that Lockwood had rented adjoining rooms in a
motel close to the interstate, a setup that Officer Dawkins testified was consistent with drug traf-
ficking, and that one of those rooms also contained drugs and drug paraphernalia. This evidence
would allow a rational juror to conclude generally that two or more people had agreed to distribute
drugs.
From there, a rational juror could also conclude specifically that Cantrell knew about and
intentionally joined this drug-trafficking conspiracy. Cantrell’s relative placed him at the Days
Inn a day or two before his arrest. Cantrell had illegally purchased a firearm of the type that drug
traffickers often use to protect their drugs. And police later found Cantrell in the Lincoln Navigator
sitting next to that firearm and substantial drugs and drug paraphernalia, some of which was in
plain view. Cantrell also immediately attempted to flee once Officer Ison stopped the Navigator.
This evidence would allow a rational juror to link Cantrell to the drug-trafficking conspiracy. It
would likewise allow a rational juror to believe that Cantrell knowingly possessed a controlled
substance with intent to distribute it, or at least that he intentionally assisted the others in doing so.
Turn to Cantrell’s firearm conviction for violating 18 U.S.C. § 924(c)(1) (Count 3). The
government needed to prove that Cantrell possessed a firearm “in furtherance of” one or both drug-
trafficking crimes. See United States v. Ham, 628 F.3d 801, 808–09 (6th Cir. 2011); United States
v. Mackey, 265 F.3d 457, 460–62 (6th Cir. 2001). The in-furtherance-of element required a “spe-
cific nexus between the gun and the [drug-trafficking] crime[s] charged.” Ham, 628 F.3d at 808
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No. 19-5391, United States v. Cantrell
(quoting Mackey, 265 F.3d at 462). The government could show that nexus, for example, if the
firearm “was strategically located so that it [was] quickly and easily available for use.” Id. (quoting
Mackey, 265 F.3d at 462). Our cases also identify several other factors to consider when evaluating
whether a sufficient nexus existed between the drugs and the firearm, including “whether the gun
was loaded,” “the type of weapon,” and “the legality of its possession.” Id. at 808–09 (citation
omitted); see United States v. Shaffer, 781 F. App’x 404, 415 (6th Cir. 2019).
Sufficient evidence supported the required elements. Cantrell does not dispute that he pos-
sessed a firearm. And a rational juror could have believed that Cantrell did so “in furtherance of”
the drug-trafficking crimes. 18 U.S.C. § 924(c)(1). Officer Ison found the firearm strategically
located next to where Cantrell had been sitting in the Navigator, “touching” or else “really close”
to drugs and within arms’ reach of the rest of the drugs in the vehicle. The firearm was ready to
use with one round in the chamber and a full or nearly full magazine; it was a type of firearm drug
traffickers often use to protect their drugs; and Cantrell could not legally possess it.
Cantrell’s responses fall short. For his two drug counts, he argues that the evidence would
allow a rational juror to conclude that he was only “a homeless addict who happened to have a
firearm,” not a drug trafficker, given that he was found under the influence of drugs and with a
syringe in his pocket. But a rational juror could conclude that drug use and drug trafficking are
not mutually exclusive. Consider the evidence: The jury heard testimony that “[i]t’s not uncom-
mon” for drug users to traffic; “a lot of times, that’s how people get paid”—“in dope.” Or consider
our cases: That an individual “may have been a user,” we have held, does not foreclose the possi-
bility that the individual was a trafficker too, especially when the police found the individual next
to large amounts of drugs, small baggies, scales, and a loaded firearm. Hampton, 769 F. App’x at
310–11.
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For the firearm count, Cantrell argues that someone who uses a firearm “in furtherance of”
a drug-trafficking crime would opt for “an assault rifle,” not the “small” “9 millimeter handgun”
that he possessed. A rational juror could conclude otherwise. Consider the evidence again: The
jury heard testimony that the “majority” of firearms used in drug-trafficking crimes are in fact
“small handguns” that “can be concealed easily.” And consider our cases again: We have rejected
similar sufficiency challenges to convictions involving similarly small handguns. E.g., Ham, 628
F.3d at 809.
B
Cantrell next challenges the district court’s decision to admit Officer Dawkins’s testimony
that the evidence “leans toward trafficking in narcotics.” His claim faces an immediate procedural
hurdle: We must review it for plain error because Cantrell did not object to this testimony. United
States v. Johnson, 488 F.3d 690, 697 (6th Cir. 2007). “We may reverse for plain error ‘only in
exceptional circumstances and only where the error is so plain that the trial judge . . . [was] derelict
in countenancing it.’” United States v. Ramamoorthy, 949 F.3d 955, 960 (6th Cir. 2020) (citation
omitted).
The district court made no obvious error. Under Federal Rule of Evidence 702, “a person
with ‘specialized knowledge’ qualified by his or her ‘knowledge, skill, experience, training, or
education’ may give opinion testimony if it ‘will assist the trier of fact to understand the evidence
or determine a fact in issue.’” Johnson, 488 F.3d at 698 (quoting Fed. R. Evid. 702). “Courts
generally have permitted police officers to testify as experts regarding drug trafficking as long as
their testimony is relevant and reliable.” Id. Courts may permit the testimony even if it “embraces
an ultimate issue to be decided by the trier of fact.” Id. at 699 (quoting Fed. R. Evid. 704(a)).
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Officer Dawkins testified that he had worked on a drug task force for nearly eight years
investigating various types of drug-trafficking cases, including “cases like this one.” He said that
his work included “surveillance of individuals, search warrants of vehicles, residences, [and] stor-
age units, collecting evidence and everything.” The drug-trafficking cases he was most familiar
with involved cocaine, fentanyl, and methamphetamine. With that foundation, Dawkins opined
about common characteristics of drug-trafficking conspiracies and how different aspects of this
case compared to other cases he had investigated. At least when considered under plain-error
review, our cases have allowed this type of expert testimony because it “assist[s] the jury to un-
derstand the evidence” by explaining “what [the expert] saw and what it meant to him as viewed
through the lens of his expertise.” Id.; see, e.g., United States v. Bender, 265 F.3d 464, 472 (6th
Cir. 2001).
Nor did the district court commit plain error in admitting Dawkins’s statement that the
evidence “lean[ed] toward trafficking.” In Johnson, for example, we held that an officer’s “opin-
ion that what he saw amounted to a drug transaction was sufficiently helpful and insufficiently
intrusive so as not to plainly cross the line into impermissible opinion evidence.” Johnson, 488
F.3d at 699. The same result must follow in this case too.
C
Cantrell next argues that his below-guidelines 352-month sentence is procedurally unrea-
sonable. That is so, he says, because the district court failed to provide a “thorough discussion of
the 18 U.S.C. § 3553(a) factors and the weight given to each factor.” Apt. Br. 29. Yet when the
court asked his counsel if he had any objections to the chosen sentence, counsel responded: “I have
none, Your Honor. I appreciate the variances you’ve given.” We thus review his claim for plain
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No. 19-5391, United States v. Cantrell
error because he failed to raise this alleged procedural error in the district court when given the
opportunity to do so. See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).
The district court did not commit plain error in its sentencing. “The law leaves much” to
a district court’s “own professional judgment” about how much explanation to give during sen-
tencing: “Sometimes the circumstances will call for a brief explanation; sometimes they will call
for a lengthier explanation.” Rita v. United States, 551 U.S. 338, 356–57 (2007). And there is “a
sizeable gap between good sentencing practices and reversibly bad sentencing practices.” Vonner,
516 F.3d at 389. In this case, as in others, “[w]hether the court’s brief explanation for this sentence
sufficed or not, any potential error was not ‘plain.’” United States v. Aguilar-Andres, 780 F. App’x
231, 234 (6th Cir. 2019) (quoting Vonner, 516 F.3d at 387).
As a general matter, while the court’s “explanation was short and did not mention § 3553,”
“we can map the district court’s reasoning onto the § 3553(a) factors.” Id. at 235. It recognized
that the Sentencing Guidelines call “for a long prison sentence” when a career offender has been
convicted of possessing a firearm in furtherance of a drug crime. See 18 U.S.C. § 3553(a)(4). That
guidelines range in this case was 420 months to life imprisonment. Yet, when considering the
“nature and circumstances of the offense,” id. § 3553(a)(1), the court found that Cantrell had a
minor role based on his homelessness and lack of funds. Those factors, in the district court’s view,
called for a downward variance. The variance, though, could not go too far because Cantrell had
a significant criminal “history.” Id.
As a specific matter, the court responded to Cantrell’s two main arguments for a downward
variance. First, Cantrell’s counsel emphasized the “very significant” length of his guidelines range
and argued that such a long sentence would “take away almost any hope from any man” and lessen
any incentive “to do as well as [he could] while incarcerated[.]” The court agreed that the
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No. 19-5391, United States v. Cantrell
Sentencing Guidelines suggested a very long sentence, which is precisely why it varied downward.
But it also explained why a long sentence was still necessary: This was Cantrell’s “third drug
trafficking conviction.” He also had “a history of violating conditions of release and not report-
ing.” Between the two, “there’s a lot here that is negative. 100 percent, I have to kind of dig to
find something here that is positive.”
Second, Cantrell highlighted his life-long addiction to drugs and argued that the evidence
showed only an addict hoping to exchange a firearm for drugs, not a drug trafficker serving “as
some type of a guard” “to embolden Mr. Lockwood in his endeavors.” The district court responded
that the jury’s verdict foreclosed this argument. The jury convicted Cantrell of all four crimes,
meaning it must have “believed beyond a reasonable doubt” that he was part of the drug-trafficking
conspiracy. “He denies that, but the jury convicted him of that.” Yet again, the district court
agreed that Cantrell “had a minor role in the offense” and therefore granted him a downward var-
iance.
All told, the court’s sentencing was sufficiently thorough to withstand plain-error review.
Cantrell offers no procedural basis to upend it.
D
Cantrell thus turns to substantive reasonableness. A substantive-reasonableness claim, at
its core, asserts that a sentence is “too long” because of an improper weighing of the § 3553(a)
factors. United States v. Lynde, 926 F.3d 275, 279 (6th Cir. 2019) (citation omitted). We review
this type of challenge for an abuse of discretion, and presume on appeal that sentences falling
within a properly calculated guidelines range are reasonable. Id. “This ‘presumption reflects the
fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both
the sentencing judge and the Sentencing Commission will have reached the same conclusion as to
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No. 19-5391, United States v. Cantrell
the proper sentence in the particular case.” Id. (quoting Rita, 551 U.S. at 347). Not only that,
where, as here, “a judge departs downward from the Guidelines range, ‘simple logic compels the
conclusion’ that a ‘defendant’s task of persuading us that the more lenient sentence . . . is unrea-
sonably long is even more demanding.’” Id. (citation omitted).
Cantrell concedes all of this, but argues that “the district court’s already lenient sentence
was not lenient enough.” Id. He re-raises his argument that he was “a homeless addict who hap-
pened to have a firearm,” not a drug trafficker, and says that if the district court had accepted his
argument it would have varied even further downward than it did. This analysis does not satisfy
the “demanding” burden of persuading us that the district court abused its discretion with its below-
guidelines sentence. See id. As the district court explained, “the jury, in fact, convicted” Cantrell
of the two drug-trafficking crimes and the related firearm crime, so the district court was required
to impose a sentence for those crimes. And the court nevertheless did consider Cantrell’s argument
about why that sentence should be lower than the Sentencing Guidelines suggested, agreed with
him that his role in the drug-trafficking conspiracy was “minor,” and ultimately granted a 68-
month downward variance. But again, it chose not to vary even further downward because, among
other things, Cantrell had “a significant criminal history” and this was “his third drug trafficking
conviction.” Whether or not we would have granted Cantrell a greater downward variance, the
same downward variance, or none at all, Cantrell has fallen short of showing that the district court
abused its discretion with this sentence.
We affirm Cantrell’s convictions and sentence.
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