United States v. Harold Salyers , 661 F. App'x 862 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0540n.06
No. 15-6131
FILED
Sep 19, 2016
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant, )
)
v. )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
HAROLD WAYNE SALYERS, )
EASTERN DISTRICT OF KENTUCKY
)
Defendant-Appellee. )
)
)
BEFORE: COLE, Chief Judge; DAUGHTREY and MOORE, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Harold Wayne Salyers
was convicted by a jury of four heroin-related offenses, including one count of distribution of
heroin, the use of which resulted in death. A Supreme Court decision, issued on the day of
Salyers’s sentencing, caused the district court to vacate the conviction on the charge of
distribution resulting in death, and the United States moved to dismiss that charge. Salyers was
sentenced on the remaining counts. Two appeals and remands followed. In this third appeal of
his sentence, Salyers challenges the district court’s decision to depart upward because of the
death, the court’s refusal to reduce his Sentencing Guidelines range for acceptance of
responsibility, and the overall reasonableness of his sentence. We find that the district court did
not abuse its discretion and affirm the judgment.
No. 15-6131, United States v. Salyers
FACTUAL AND PROCEDURAL BACKGROUND
Salyers often drove from his home in Winchester, Kentucky, to Cincinnati, Ohio, to
purchase heroin, but he rarely used it himself. Instead, he sold the heroin in Winchester or gave
it to women in exchange for sexual favors.
On August 5, 2012, Salyers returned from a trip to Cincinnati and gave some heroin to
Wade Dickerson. Dickerson was a diabetic, who struggled with drug addiction and was on
multiple prescription medications. On August 7, Dickerson overdosed on heroin after injecting it
intravenously, and he died the next day. A medical examiner testified at trial that Dickerson died
from “cardiopulmonary arrest due to acute combined effects of heroin, Oxycodone and
Clonazapin.” The examiner could not pinpoint exactly which drug caused his death but testified
that the most prominent drug in his system was the heroin. A forensic toxicologist testified that
the level of Oxycodone in Dickerson’s system was not toxic but that the level of heroin was.
Following Dickerson’s death, the police interviewed Salyers twice, and in both taped
interviews, he admitted giving Dickerson heroin prior to his death. Salyers initially was charged
in state court and released on bail. He apparently continued to distribute heroin, and on February
26, 2013, he sold heroin to a confidential informant in a controlled buy.
On June 6, 2013, Salyers was indicted on four federal heroin-related charges:
 Count I: conspiracy to distribute heroin
 Count II: distribution of heroin, the use of which resulted in Wade Dickerson’s death
 Count III: possession of heroin with the intent to distribute, and
 Count IV: distribution of heroin.
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Salyers pleaded not guilty to all of the charges, but at trial he admitted through counsel that he
was guilty of Counts I, III, and IV and that he had distributed heroin to Dickerson prior to his
death, as alleged in Count II. Salyers’s sole defense at trial was that the government had not
proven that he was criminally responsible for Dickerson’s death. Salyers did not present any
evidence at trial. The jury convicted him on all four counts.
Salyers initially was sentenced to 240 months of imprisonment, which was the mandatory
minimum resulting from his conviction on Count II, the charge of distribution resulting in death.
However, on the day of Salyers’s sentencing, the Supreme Court issued an opinion holding that a
defendant cannot be liable for distributing a drug causing death unless the drug in question was a
“but-for cause of the death” and not merely a contributing factor. Burrage v. United States,
134 S. Ct. 881, 892 (2014). As a result, the district court granted Salyers’s motion to reopen his
sentencing and vacated his conviction on Count II. At the second sentencing hearing, the
government dismissed Count II without prejudice. The court then calculated a Guidelines range
of 78–97 months, departed upward based on Dickerson’s death, and sentenced Salyers to
120 months.
Salyers appealed, and we held that he should not have been subject to an enhancement for
being a leader or organizer, vacated his sentence, and remanded for resentencing. United States
v. Salyers, 592 F. App’x 483, 486 (6th Cir. 2015). On remand, the district court sua sponte
issued an opinion and order determining that no hearing was needed and resentencing Salyers to
120 months. United States v. Salyers, No. 13-cr-73-JMH, 2015 WL 859367, at *1–2 (E.D. Ky.
Feb. 27, 2015). Salyers moved for reconsideration, arguing that he was entitled to a hearing. He
also sought a reduction of sentence pursuant to Amendment 782 to the drug-quantity tables in the
Guidelines. The district court denied both motions in a brief text entry in the docket, and Salyers
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No. 15-6131, United States v. Salyers
again appealed. After the government filed a motion conceding that Salyers was entitled to a
resentencing hearing, we once again vacated Salyers’s sentence and remanded for resentencing.
United States v. Salyers, No. 15-5367 (6th Cir. Aug. 14, 2015) (order).
There then ensued a third sentencing hearing, and Salyers was sentenced for the fourth
time. This time the district court recalculated Salyers’s Guidelines range without applying the
leadership enhancement and with the two-level reduction in offense level required by
Amendment 782, at 41–51 months. However, the court declined to reduce Salyers’s offense
level further based on acceptance of responsibility, stating, “I believe he did not really take any
responsibility for the death of Mr. . . . Dickerson . . . [w]hich I think he bears some responsibility
for.” The court sentenced Salyers to 72 months, once again departing above the Guidelines
range based on Dickerson’s death. Salyers now appeals his 72-month sentence.
DISCUSSION
We review a district court’s sentence for procedural and substantive reasonableness under
a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United
States v. Benson, 591 F.3d 491, 500 (6th Cir. 2010). In doing so, we must “give due regard to
the opportunity of the district court to judge the credibility of the witnesses, . . . accept the
findings of fact of the district court unless they are clearly erroneous[,] and . . . give due
deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e).
“A district court commits procedural error and abuses its sentencing discretion
by improperly calculating the Guidelines range; treating the Guidelines as mandatory; failing to
adequately consider the § 3553(a) factors; selecting a sentence based on clearly erroneous facts;
or failing to adequately explain the chosen sentence, including an explanation for any deviation
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from the Guidelines range.” United States v. Brinley, 684 F.3d 629, 633 (6th Cir. 2012).
“A sentence may be considered substantively unreasonable when the district court selects a
sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” Id. at
636 (internal quotation marks and citation omitted). Salyers challenges the district court’s
decision to sentence him above the Guidelines range based on Dickerson’s death, the court’s
refusal to reduce his Guidelines range based on acceptance of responsibility, and the substantive
reasonableness of his sentence under the circumstances.
Upward Departure for Dickerson’s Death
A sentencing court may depart above the advisory Guidelines range if death resulted
from the offense. U.S.S.G. § 5K2.1. The Guidelines also permit the court to depart upward “to
reflect the actual seriousness of the offense based on conduct” underlying a charge that was
dismissed or not pursued. U.S.S.G. § 5K2.21. Salyers does not appear to challenge the district
court’s factual finding that he was responsible “in some degree” for Dickerson’s death. Even if
Salyers were to make this challenge, we would not hold the district court’s finding to be clearly
erroneous because there is ample support in the record to find by a preponderance of the
evidence that Dickerson’s death resulted from Salyers’s conduct. See United States v. Churn,
800 F.3d 768, 780 (6th Cir. 2015) (relying on the rule that a sentencing court may consider
conduct that has been proved by a preponderance of the evidence). Salyers admitted giving
heroin to Dickerson two days before he overdosed but sought to create doubt in the jurors’ minds
concerning his responsibility for the death. However, he offered no evidence at trial that some
other supplier was the source of the heroin that caused Dickerson’s fatal overdose. As a result,
we conclude that the district court did not clearly err in finding that Dickerson’s death resulted
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No. 15-6131, United States v. Salyers
from Salyers’s conduct and, thus, did not abuse its discretion by enhancing Salyers’s sentence on
that basis.
Acceptance of Responsibility
“If the defendant clearly demonstrates acceptance of responsibility for his offense,” his
offense level decreases by two. U.S.S.G. § 3E1.1(a). The defendant bears the burden of
showing by a preponderance of the evidence that such a reduction is warranted. United States v.
Denson, 728 F.3d 603, 614 (6th Cir. 2013). “Typically, we review for clear error a district
court’s determination that a defendant is not entitled to a downward adjustment for acceptance of
responsibility.” United States v. Coss, 677 F.3d 278, 290 (6th Cir. 2012). “However, if the only
issue presented is the propriety of applying the reduction to the uncontested facts, the decision is
reviewed de novo.” Id. (quoting United States v. Reaume, 338 F.3d 577, 582 (6th Cir. 2003)).
The parties disagree about which standard of review we should apply. We need not resolve this
dispute because, for the reasons explained below, the district court’s decision was not clear error,
and we would reach the same result if we reviewed the issue de novo.
The application notes to § 3E1.1 elaborate some factors to be considered when assessing
whether the acceptance-of-responsibility reduction applies:
1. In determining whether a defendant qualifies . . . appropriate considerations
include, but are not limited to, the following:
(A) truthfully admitting the conduct comprising the offense(s) of conviction,
and truthfully admitting or not falsely denying any additional relevant
conduct for which the defendant is accountable under §1B1.3 (Relevant
Conduct). Note that a defendant is not required to volunteer, or
affirmatively admit, relevant conduct beyond the offense of conviction in
order to obtain a reduction under subsection (a). A defendant may remain
silent in respect to relevant conduct beyond the offense of conviction
without affecting his ability to obtain a reduction under this subsection.
However, a defendant who falsely denies, or frivolously contests, relevant
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No. 15-6131, United States v. Salyers
conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility;
(B) voluntary termination or withdrawal from criminal conduct or
associations;
.....
2. This adjustment is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the essential factual
elements of guilt, is convicted, and only then admits guilt and expresses
remorse. Conviction by trial, however, does not automatically preclude a
defendant from consideration for such a reduction. In rare situations a
defendant may clearly demonstrate an acceptance of responsibility for his
criminal conduct even though he exercises his constitutional right to a trial.
This may occur, for example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt (e.g., to make a constitutional
challenge to a statute or a challenge to the applicability of a statute to his
conduct). In each such instance, however, a determination that a defendant has
accepted responsibility will be based primarily upon pre-trial statements and
conduct.
U.S.S.G. § 3E1.1, comment.
Salyers maintains that he accepted responsibility because he admitted, in interviews with
law enforcement and through counsel during trial, the conduct described in Counts I, III, and IV
and the conduct underlying Count II (giving Dickerson heroin before his death). At trial, Salyers
disputed only whether the heroin he provided was the cause of Dickerson’s death, and that
charge ultimately was dismissed. The defendant’s argument has an intuitive appeal: Why
should he be required to accept responsibility for conduct that formed the basis of a charge that
the government ultimately dismissed?
The answer lies in the application notes quoted above. To benefit from § 3E1.1’s
reduction, the defendant must accept responsibility not only for the offense of conviction but also
for any additional relevant conduct. U.S.S.G. § 3E1.1, comment. Relevant conduct includes “all
acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or
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No. 15-6131, United States v. Salyers
willfully caused by the defendant; and . . . all harm that resulted from the[se] acts and
omissions.” U.S.S.G. § 1B1.3(a). The district court determined by a preponderance of the
evidence, and we agree, that Dickerson’s death was a harm that resulted from the defendant’s
acts. As explained above, there is ample support in the record for this finding. By denying
responsibility for Dickerson’s death, Salyers “acted in a manner inconsistent with acceptance of
responsibility.” U.S.S.G. § 3E1.1 comment. (n.1(A)).
Salyers distributed heroin to other individuals during the days surrounding Dickerson’s
overdose, and he continued to distribute heroin after he was released on bail following his first
arrest on state charges. He plainly did not “voluntary[ily] terminat[e] or withdraw[] from
criminal conduct or associations.” U.S.S.G. § 3E1.1 comment. (n.1(B)). Furthermore, Salyers
made statements in a letter he mailed to the district court and during a colloquy with the judge at
the second sentencing hearing that indicated a lack of acceptance of responsibility for his illegal
actions. He attempted to shift the blame to others, stating, “[T]hey conned me into it, they talked
me into giving in to him to get his truck out of hock so he could go to work.” He added that
Dickerson asked for the heroin and that the women with whom he exchanged heroin for sex were
using drugs before he met them. He also told the judge, “I think I should have a lighter sentence
because the guy OD’d.” These statements provide further support for finding that Salyers did
not accept responsibility for his offense. We conclude that the district court did not err in
denying Salyers a reduction in offense level based on acceptance of responsibility.
Substantive Reasonableness of Sentence
Salyers asserts that his sentence is unreasonable because the district court did not
adequately consider and properly weigh the 18 U.S.C. § 3553(a) factors. Specifically, Salyers
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argues that the court did not properly consider and weigh his argument that his actions were not
malicious and that Dickerson bore significant responsibility for his own demise because he
begged Salyers for the heroin under false pretenses and then chose to inject himself with a large
quantity of heroin after being warned that he might kill himself. Salyers also points to his
absence of prior felonies and excellent work history as factors that weigh in favor of a more
lenient sentence.
The record demonstrates that the district court adequately considered and weighed the
§ 3553(a) factors and did not abuse its discretion in sentencing Salyers to 72 months. At the
second sentencing hearing, the court noted that it did not depart as high as the government
requested because Salyers had no criminal history and suffered from health problems. At that
same hearing, the court listened to the defendant explain at some length the reasons for which he
believed he should receive a more lenient sentence, including Dickerson’s culpability. At the
third sentencing hearing, Salyers’s counsel incorporated the prior discussions, stating, “I feel the
3553(a) factors have been fully briefed before here, and I would just simply say, you know, he
doesn’t have any criminal history; but obviously the court’s well aware of the negative aspects of
this case as well.”
We do not require the district court to undertake a “ritualistic incantation” of the
§ 3553(a) factors. See United States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005) (internal
quotation marks and citations omitted). Over the course of the three sentencing hearings in this
matter, the district court considered and rejected each of the arguments the defendant now urges
on appeal. In essence, his complaint on appeal is that, after considering these factors, the district
court did not conclude that a lower sentence was appropriate. However, none of the
considerations Salyers raises compelled the district court to impose a lower sentence, and
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No. 15-6131, United States v. Salyers
Salyers’s disagreement with the district court’s decision does not make his sentence procedurally
or substantively unreasonable. See United States v. Overmyer, 663 F.3d 862, 864 (6th Cir.
2011). We are satisfied that the district court sufficiently explained its sentence and did not
abuse its discretion by sentencing Salyers to 72 months.
For the reasons set out above, we AFFIRM the district court's judgment.
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