United States v. Costica Bonas ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0352n.06
Nos. 09-1390/1435/1906
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED
)
Plaintiff-Appellee, ) May 24, 2011
) LEONARD GREEN, Clerk
v. )
)
COSTICA LUCIAN BONAS, aka Coco, aka Tico, )
)
Defendant-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
DAVID ANDREW CARTER, ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
Defendant-Appellant, )
)
CORDELL SAIN, aka Myron Malone, )
)
Defendant-Appellant. )
)
)
Before: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.
PER CURIAM. Eleven defendants were indicted on various charges including conspiracy
to possess, with the intent to distribute marijuana, in violation of 21 U.S.C. §§ 841 and 846,
possession of marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and
possession of a firearm in connection with drug trafficking, in violation of 18 U.S.C. § 924(c). A
jury found Defendant-Appellant Costica Lucian Bonas guilty of conspiracy to possess, with the
intent to distribute marijuana and possession of marijuana with the intent to distribute. Bonas
appeals, urging that his conviction be vacated for the absence of a limiting jury instruction and
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improper admission of a prejudicial photograph. He received concurrent sentences of imprisonment
of ninety-seven months for both offenses. Bonas also contends on appeal that his sentences were
unreasonable and he should have received a lesser sentence for his role in the offenses. Defendant-
Appellant David Andrew Carter was acquitted of conspiracy to possess, with intent to distribute
marijuana, but was found guilty of possession of a firearm in connection with drug trafficking, in
violation of 18 U.S.C. § 924(c) and aiding and abetting the possession of marijuana with the intent
to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Carter was sentenced to
consecutive terms of imprisonment of one hundred twenty months for the marijuana possession
offense and sixty months for the firearm possession offense. Carter appeals, arguing that his guilty
verdicts were against the great weight of the evidence and that his sentence was unreasonable,
warranted safety valve relief, and should have been decreased based upon his role in the offenses.
Defendant-Appellant Cordell Sain was found guilty of conspiracy to possess with the intent to
distribute marijuana and possession of marijuana with the intent to distribute. Sain was sentenced
to concurrent terms of 240 months’ imprisonment for each offense. Sain appeals, stating that the
district court erred at trial when it refused to categorically preclude the introduction of evidence of
his post-indictment conviction for a drug offense and violated the Eighth Amendment’s comparative
proportionality principle when it sentenced him to a longer term of imprisonment than most other
defendants. For the following reasons, we AFFIRM each Defendant-Appellant’s convictions and
sentences.
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I. BACKGROUND
A. Investigation and Arrests
The Drug Enforcement Agency (“DEA”) and Federal Bureau of Investigation (“FBI”) were
each conducting investigations involving drug trafficking in Michigan in 2007. On June 4, 2007,
a DEA informant notified the agency that Costica Bonas was set to receive a 2,500 pound shipment
of marijuana in Romulus, Michigan, shipped from Canada on June 5, 2007. Near the same time, a
task force named CHIEF, comprised of FBI agents, DEA agents, and the Michigan State Police
received information that a suspected drug trafficker, Ramon Soria, who had been arrested in 2007
in Texas with over 200 pounds of marijuana but fled while on bond, was staying at a Days Inn in
Romulus, Michigan. The DEA and FBI, thereafter, coordinated surveillance.
On June 5, agents observed Soria meeting with three other individuals at the hotel. The four
individuals then left the hotel in rental cars, with Soria and Herrera in one car, and the other two
individuals in a second car. Agents followed the vehicles to a warehouse in Huron Township. The
agents then set up surveillance of the warehouse. On the same day, several different vehicles with
several different individuals, including Soria and Bonas, arrived at and departed from the warehouse.
At about 11:14 a.m., multiple vehicles, including a black cargo truck and a white Toyota were
present at the warehouse parked near each other. At about 12:05 p.m., a black cargo truck backed
up to the warehouse door and then pulled away and left the warehouse. The white Toyota also left
as the black cargo truck pulled away. Agents followed the white Toyota until it met a 53-foot long
semi tractor-trailer (“semi”) and led the semi back to the warehouse. The semi arrived at about 12:15
p.m. and backed into the warehouse doors. Agents and officers saw individuals bring tools at about
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12:30 p.m. The semi departed the warehouse at about 12:40 p.m. without its trailer, which was left
inside the warehouse. Agents overheard grinding and drilling noises. At about 1:55 p.m., the semi
returned to the warehouse. The black cargo truck also returned. The semi picked up the trailer, and
again departed. The black cargo truck backed into the warehouse at about 2:07 p.m. Agents and
officers reportedly smelled marijuana and observed several men wearing gloves passing bales of
marijuana from the warehouse into the black cargo truck as they entered the warehouse at about 2:10
p.m. Over 200 bales of marijuana, weighing about 2,312 pounds in total, were recovered from the
warehouse, the black cargo truck, and from the semi’s secret compartments when it was pulled over
and searched after it left the warehouse. Defendants Bonas, Carter, Sain and eight others individuals
were arrested as a result of the DEA and FBI raid and indicted on drug trafficking charges. At the
time of his arrest, Carter had a loaded handgun tucked into his waistband. Carter had a valid
concealed weapons permit for the gun.
B. Jury Trials
Ten of the individuals indicted as co-conspirators in the drug ring pled guilty or were found
guilty by a jury. The other individual was acquitted by a jury. Bonas and Carter were tried together
by a jury, along with three other indicted co-conspirators. Sain requested, and obtained a separate
jury trial.
1. Bonas’s and Carter’s Joint Trial
The DEA informant did not testify at Bonas and Carter’s joint trial. The DEA informant was
referenced by the Government during its case and Bonas’s counsel referenced the informant by name
during his opening statement. Bonas did not testify during trial. Carter testified and contended that
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he was not a part of the conspiracy and also was not guilty of the other charged offenses. In support
of this contention, Carter testified that he was at the industrial location for an extremely short time,
from approximately 2:07 p.m. to the time of the raid at 2:10 p.m., to pick up a shipment that his
moving company was called to retrieve and that he had no knowledge of the drugs. Carter further
testified that unlike his co-defendants, he was not wearing gloves at the time of the arrest, to suggest
that he was not involved in the drug trafficking ring. The Government stated that the gloves were
utilized to prevent fingerprints on the clear bales of marijuana. Carter sought to introduce
photographs taken at the time of his arrest to corroborate his testimony. One agent testified that he
did not see Carter wearing gloves, while two agents testified that they did see Carter wearing gloves,
just like the gloves the others arrested at the scene were wearing. The Government asserted that
Carter wore gloves, but that he had taken them off before he was handcuffed. The photograph at
issue showed Carter without gloves, but also included co-defendant Bonas in handcuffs, wearing
gloves. Bonas objected to the introduction of the photograph and asserted that it was more
prejudicial than probative, which necessitated exclusion. The district court sustained the objection
and excluded the photograph.
The next day, during direct examination, a federal agent, the Government sought to admit
the same photograph containing Carter and Bonas while describing the scene at the time of the
defendants’ arrest. This time the district court admitted the photograph over Bonas’s objection. The
prosecutor contended that he was compelled to introduce the photo of Carter and Bonas since Carter
raised the gloves issue and the prosecutor wanted to thwart other defendants from making the issue
of gloves central to the case. Bonas strenuously contended that the photo was unnecessary.
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At the close of the evidence, Bonas requested dismissal of all charges against him, and did
so again after the trial judge instructed the jury. Neither motion to dismiss was granted. Carter did
not seek a similar dismissal. The district court instructed the jury to decide the case based upon the
evidence presented, including only what witnesses said under oath, and to refrain from speculation
about what a witness might have said if they would have testified. Bonas did not request any specific
jury instruction regarding the non-testifying DEA informant. The jury found that Bonas was
responsible for possession with the intent to distribute more than 100 kilograms of marijuana.
2. Sain’s Individual Trial
At his trial, Cordell Sain sought to exclude evidence of his subsequent convictions for
possession with intent to distribute 14.8 grams of marijuana and being a felon in possession of a
firearm. The district court ruled, in a written order, that the evidence was probative as to whether
Sain had the intent to possess with intent to distribute marijuana or whether he was “merely present”
at the time of the drug raid, but the district court made its ruling contingent on the defense that Sain
produced. Sain did not object to the district court’s ruling and did not testify at trial.
C. Sentencing Hearings
1. Defendant Bonas
Bonas received two concurrent sentences of ninety-seven months’ imprisonment for
conspiracy to possess, with the intent to distribute marijuana and possession with the intent to
distribute marijuana, less than the statutory minimum of one hundred twenty months for each charge.
The district court granted Bonas safety valve relief (over the Government’s objection) pursuant to
U.S.S.G. § 5C1.2. The district court denied Bonas’s request for minor participant status, finding that
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he helped procure the site, helped off-load the marijuana, and was not less than culpable than most
of his co-conspirators. Bonas had no prior criminal convictions and was classified in Sentencing
Guidelines Criminal History Category I.
2. Defendant Carter
Carter received a sentence of imprisonment totaling 180 months: consecutive sentences of
120 months’ imprisonment for possession with intent to distribute, aiding and abetting and sixty
months’ imprisonment for possession of a firearm during a drug trafficking offense. At Carter’s
sentencing hearing, the district court found that he did not qualify for U.S.S.G. § 5C1.2 safety valve
relief since two of the prerequisites were that the offense was committed absent possession of a
firearm and that the defendant divulged all available information concerning the offense to the
Government. The district court found that Carter had not truthfully provided all useful information
to the Government and committed a crime while carrying a gun and, therefore, despite the district
court’s pronouncement of a “harsh sentence” of 180 months’ imprisonment, Carter was subject to
the applicable mandatory minimum sentences. The offenses mandated consecutive sentences. The
district court also found that despite Carter’s view that he should also be eligible for a sentence
reduction as a minor participant, he was not a minor participant since he was an indispensable party
to the crime—he supplied the black cargo truck into which more than one ton of marijuana was
loaded.
3. Defendant Sain
Sain received concurrent sentences of 240 months’ imprisonment (the mandatory minimum
pursuant to sentencing enhancements) for each count of conspiracy to possess, with the intent to
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distribute marijuana and possession with the intent to distribute marijuana. At sentencing, Sain was
classified in Criminal History Category VI, and was found to be a career offender pursuant to the
Sentencing Guidelines. This produced a Guidelines sentencing range of 360 months to life
imprisonment. No other previously sentenced member of the drug ring received more than 180
months’ imprisonment.
II. ANALYSIS
We address each defendant’s appeal in turn.
A. Costica Bonas
Bonas contends that the district court erred at trial by failing to provide a limiting instruction
regarding a non-testifying informant and abused its discretion by admitting a photograph showing
him in handcuffs. Bonas asserts that these purported errors made his trial fundamentally unfair such
that his conviction should be vacated. Bonas also argues that the court should have imposed a lesser
sentence for his role in the offenses as a minor participant.
1. Limiting Instruction
If the district court provided “confusing, misleading, and prejudicial” jury instructions, we
must vacate Bonas’s convictions. United States v. Adams, 583 F.3d 457, 469 (6th Cir. 2009)
(citation omitted). However we are also mindful that “[t]he duty to provide an instruction . . . arises
only ‘upon [the] request’ of one of the parties.” United States v. Fraser, 448 F.3d 833, 839 n.3 (6th
Cir. 2006) (citing Fed. R. Evid. 105) (additional citation omitted). Bonas failed to request a limiting
jury instruction regarding the DEA informant so the trial court’s procedure is viewed for plain error.
See Woodbridge v. Dahlberg, 954 F.2d 1231, 1237 (6th Cir. 1992). To establish plain error, the
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defendant must show that there is “(1) error, (2) that is plain, and (3) that affects substantial rights.”
Johnson v. United States, 520 U.S. 461, 466-67 (1997) (internal quotation marks and citation
omitted). “If all three conditions are met, an appellate court may then exercise its discretion to notice
a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id.Bonas contends that the district court should have instructed the jury not to draw any
conclusions about what the DEA informant would have said if he were called to testify. Bonas
asserts that absent this specific instruction, he is entitled to a new trial. The Government contends
that Bonas, not it, repeatedly invoked the specter of the absent DEA informant. Indeed, Bonas’s
counsel specifically threatened to call the DEA informant as a witness and attempted to question the
strength of the Government’s case by remarking on the Government’s decision not to have the
informant testify. Nevertheless, Bonas oddly contends that repeated references to the DEA
informant prejudiced his defense in the minds of the jurors. Bonas offers no support for the alleged
prejudice, but merely notes that after the jury verdict the Government stated to the district court that
Bonas made threats against the informant. We do not think that such a statement made to the court
after the jury verdict can be construed to show that the jury instructions caused prejudice to Bonas.
Furthermore, the district court charged the jury to only consider witness statements provided
under oath and to refrain from speculating about what a non-testifying witness might have said, since
that did not constitute evidence. No specific mention of the DEA informant was required or needed,
especially when one was not requested. Therefore, it is obvious upon review of the record that the
district court’s pattern jury instructions regarding adherence to the evidence before the court and
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preclusion from speculating about non-testifying witnesses constituted a sufficient jury instruction
such that no error occurred.
2. Photograph Admission
Bonas states that the district court’s decision to admit the photograph displaying him in
handcuffs entitles him to a new trial. We review the admission of evidence for abuse of discretion.
See United States v. Sassanelli, 118 F.3d 495, 498 (6th Cir. 1997). Relevant evidence is generally
admissible, however, it may be excluded if “its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury . . . or needless
presentation of cumulative evidence.” Fed. R. Evid. 403. This court must “take into account that
all evidence introduced by the prosecution generates prejudice against the defendant and ask
specifically whether the item tends to suggest a decision on an improper basis.” United States v.
Culbertson, 364 F. App’x 998, 999 (6th Cir. 2010).
The district court engaged in the balancing test required by Federal Rule of Evidence 403 to
determine whether or not the photograph showing Bonas in handcuffs should have been admitted.
See Fed. R. Evid. 403. Bonas contends that the admission of the photograph depicting him in
handcuffs was an abuse of discretion and that the photograph was prejudicial against his interests,
duplicative, and unnecessary. He asserts that a better approach would have constituted a request by
the trial court for stipulations from the other parties rather than admitting the photograph. This
argument undercuts Bonas’s assertion that the depiction of him in handcuffs affected the outcome
of his case. While the photograph plainly showed him in a negative light since he was in handcuffs
with gloves on, at most, the district court committed harmless error since it is highly improbable that
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“the error materially affected the verdict.” Culbertson, 364 F. App’x at 1000 (quoting United States
v. Childs, 539 F.3d 552, 559 (6th Cir. 2008) (internal citation omitted)). Bonas, much less than his
co-defendant Carter, had virtually zero merit in a potential mere presence defense given his entry and
prolonged presence at the scene. The district court’s admission of the photograph did not make the
trial “fundamentally unfair,” especially since there are no other errors to combine it with. Id. at 1001
(quoting United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004)). Accordingly, Bonas’s
conviction is AFFIRMED.
3. Role Reduction
Bonas states that his ninety-seven month concurrent sentences are unreasonable, based upon
his belief that he should have been classified as a minor participant. Sentencing determinations are
reviewed for reasonableness “under a deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). Review for reasonableness mandates that the appellate court ensure
that the sentence was both procedurally and substantively sound. United States v. Sedore, 512 F.3d
819, 822 (6th Cir. 2008). Sentences within the Guidelines range are afforded a rebuttable
presumption of reasonableness. United States v. Bailey, 488 F.3d 363, 368 (6th Cir. 2007). Denial
of a mitigating role reduction at sentencing is reviewed for clear error. See United States v. Salas,
455 F.3d 637, 644 (6th Cir. 2006).
The Guidelines provide: “If the defendant was a minimal participant in any criminal
activity, decrease by 4 levels; if the defendant was a minor participant in any criminal
activity, decrease by 2 levels; and, in cases falling between minimal and minor,
decrease by 3 levels.” U.S.S.G. § 3B1.2. A “minimal participant” is one “who plays
a minimal role in concerted activity.” Id. cmt. n.4. A “minor participant” is a
defendant “who is less culpable than most other participants, but whose role could
not be described as minimal.” Id. cmt. n.5.
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United States v. Olea-Coronado, 391 F. App’x 508, 510 (6th Cir. 2010) (quotation marks and
brackets omitted).
Bonas contends that the district court should have categorized him as a minor or minimal
participant in the drug conspiracy and given him a corresponding sentence reduction pursuant to
U.S.S.G. § 3B1.2. Bonas seeks to distinguish his conduct from that of the “mastermind,” co-
defendant Soria. Bonas recites the requirement that a participant lacking knowledge or
understanding of the scope and structure of a drug enterprise is entitled to categorization as a minor
or minimal participant. See U.S.S.G. § 3B1.2. In support of his argument he states that he only
“assisted” in the drug ring by unloading and reloading bales of marijuana and did not direct his co-
defendants/co-conspirators.
Bonas’s Guidelines range of imprisonment was ninety-seven to one hundred twenty-one
months for each count. The district court applied safety valve relief pursuant to U.S.S.G. § 5C1.2
to depart below the statutory minimum of one hundred twenty months for each count, and sentenced
Bonas to concurrent ninety-seven month sentences. While Bonas may not have been the mastermind
of the drug conspiracy, he provides little detail as to how his criminal conduct compared to that of
his co-defendants. It is not enough to say that he was simply not the director and was merely an
“assistant.” Further, the jury specifically found that Bonas was responsible for possession with the
intent to distribute more than 100 kilograms of marijuana. Bonas’s ninety-seven month sentence was
reasonable and there was no clear error in the district court’s denial of his request for a minimal role
reduction. Thus, Bonas’s conviction and sentences are AFFIRMED.
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B. David Carter
Carter’s appeal is predicated upon his belief that his convictions for aiding and abetting the
possession of marijuana with the intent to distribute and possession of a firearm in connection with
drug trafficking were against the great weight of the evidence. Carter also asserts that the sentences
he received were unreasonable. Carter contends that the district court failed to address the 18 U.S.C.
§ 3553(a) factors, that the court erred in not granting him a reduction below the mandatory minimum
pursuant to the Sentencing Guidelines safety valve provision, and that the court erred by refusing to
grant him a sentence reduction as a minimal or minor participant or to depart below the Sentencing
Guidelines based on aberrant behavior.
1. Sufficiency of the Evidence
We review de novo Carter’s claim that there was insufficient evidence to sustain his
possession of marijuana with intent to distribute and possession of a firearm in connection with drug
trafficking offenses. United States v. Carson, 560 F.3d 566, 579 (6th Cir. 2009). Carter bears a
“heavy burden when making a sufficiency of the evidence challenge” since we must view “all
evidence in the light most favorable to the prosecution and determine[] whether there is any evidence
from which a reasonable jury could find guilt beyond a reasonable doubt.” Id. at 580 (quoting
United States v. Talley, 164 F.3d 989, 996 (6th Cir. 1999)). Regarding the possession of marijuana
with the intent to distribute offense, “[t]o establish a violation of § 841(a)(1), the government must
prove the following elements: ‘(1) knowing (2) possession of a controlled substance (3) with intent
to distribute.’” United States v. Mackey, 265 F.3d 457, 460 (6th Cir. 2001) (quoting United States
v. Christian, 786 F.2d 203, 210 (6th Cir. 1986)). To show a violation of 18 U.S.C. § 2, Carter must
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have possessed “knowledge of the general scope and nature of the illegal [activity] and awareness
of the general facts concerning the venture.” United States v. Sliwo, 620 F.3d 630, 638 (6th Cir.
2010) (alteration in original) (citation omitted). “Mere presence at the scene of the crime” is
insufficient to establish aiding and abetting; rather, to establish Carter’s guilt here, the Government
must have shown he “was a participant rather than merely a knowing spectator.” United States v.
Pena, 983 F.2d 71, 73 (6th Cir. 1993) (quoting United States v. Bryant, 461 F.2d 912, 921 (6th Cir.
1972); see also United States v. Morrison, 220 F. App’x 389, 398 (6th Cir. 2007) (finding
defendant’s mere knowledge of “some illegal activity” insufficient to support aiding and abetting
conviction (emphasis in original)).
“Circumstantial evidence alone can be sufficient to sustain a conviction.” Mackey, 265 F.3d
at 460. Thus, the Government could substantiate the charged offense by showing that not only did
Carter know about the packages of marijuana (evidenced by his arrest at the back of the truck with
dozens of marijuana bales extremely close to him), but also that he specifically drove a truck to assist
in transporting the marijuana. As to the weapons possession offense, to establish a violation of 18
U.S.C. § 924(c), the government must show that during a drug trafficking crime, Carter carried a
firearm. Id. Carter has admitted to having the weapon in his waistband at the time of his arrest and
during his trip to the warehouse; thus, if there is sufficient evidence to substantiate his aiding and
abetting possession with intent to distribute marijuana offense, the firearm conviction must stand.
In Pena, we reversed a defendant’s conviction for aiding and abetting possession with intent
to distribute cocaine. 983 F.2d at 71. The defendant was a sleeping passenger in a borrowed car
which was stopped by police officers for a speeding violation. Police officers performed a consent
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search of the car and discovered fifteen packages amounting to seventeen kilograms of cocaine. The
defendant denied knowing what was in the car but stated that she “felt there was probably something
illegal going on.” Id. at 72. Finding that prosecutors adduced no additional information to support
that the defendant knew more about the nature of the illegality and instead relied upon “[g]uilt by
association,” we reversed the defendant’s conviction. Id. at 73.
Here, the jury was presented with sufficient, circumstantial evidence to support Carter’s
conviction, markedly different from Pena. See also Sliwo, 620 F.3d at 635 (vacating conviction for
aiding and abetting possession with intent to distribute marijuana where the defendant served only
as a lookout and procured an empty van). Carter was twice-present at the scene, before and during
the drug raid. Driving with another member of the conspiracy, he backed his truck up and the co-
defendants loaded bales of marijuana into it. Carter was arrested in the back of the cargo van where
bales of marijuana were present. The jury weighed Carter’s own testimony that he was simply an
innocent individual picking up a shipment for his moving company with the testimony of multiple
federal agents, which indicated that a huge drug shipment had been planned and was being executed,
that the marijuana was packed in clear bales and exuded a pungent aroma, and that Carter wore
gloves just like his co-defendants at the time of his arrest. One agent did testify that he did not see
Carter wearing gloves. Carter contends that because the raid occurred at the same time he went to
the back of the cargo van, he had insufficient time to leave the scene. Here, a reasonable juror could
find that an innocent person would not stay in the back of the cargo van—even if only for a few
minutes—while it was clearly being loaded with marijuana. Such a finding is a particularly
reasonable inference when the same individual possessed a handgun and was wearing gloves like
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the other defendants. Furthermore, it would be quite reasonable for a juror to conclude that it would
be highly unlikely for drug dealers to hire a legitimate moving company to move millions of dollars
of marijuana that had a pungent odor and was wrapped in clear plastic. Upon review of the record,
we find that a rational trier of fact could have found the essential elements of the crimes — aiding
and abetting possession with intent to distribute marijuana and possession of a firearm during that
criminal offense — proven beyond a reasonable doubt. Accordingly, Carter’s convictions are
AFFIRMED.
2. Sentence Reasonableness
Carter was sentenced to consecutive terms of imprisonment of one hundred twenty months
for aiding and abetting possession with the intent to distribute marijuana and sixty months for
possession of a firearm during that drug trafficking offense. Carter asserts that the district court
failed to review the § 3553(a) sentencing factors or make an individualized assessment of him based
upon all the facts presented.
a. 18 U.S.C. § 3553(a) Factors
A district court need not explicitly refer to the § 3553(a) factors at sentencing, but the court’s
sentence must be explained and allow for meaningful appellate review. United States v. McClellan,
164 F.3d 308, 310 (6th Cir. 1999); see Gall, 552 U.S. at 50. Here, the district court explicitly stated
that the applicable mandatory minimums applied and Carter’s sentence was guided by statute, not
the Sentencing Guidelines. United States v. Franklin, 499 F.3d 578, 585 (6th Cir. 2007) (stating
that “§ 3553(a) factors do not apply to congressionally mandated sentences”). It appears that Carter
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merely disagrees with the district court’s sentence. However, the sentence was reasonable and the
district court’s failure to mechanically state the § 3553(a) factors was inconsequential.
b. Downward Sentencing Departures
Carter asserts that his sentence was unreasonable since he was not granted U.S.S.G. § 5C1.2
safety valve relief, U.S.S.G. § 3B1.2 role reduction, or U.S.S.G. § 5K2.20 aberrant behavior
downward departures, each of which he contends were applicable and would have reduced his
sentence. Section 5C1.2 safety valve relief mandates that the district court find that a defendant was
truthful, provided all useful information to the Government and did not commit the instant offense
while possessing a gun. U.S.S.G. § 5C1.2(a)(2), (a)(5) (emphasis added). Given the jury’s
conviction of Carter for the aiding and abetting possession with the intent to distribute offense, it was
not clear error for the court to find that Carter was less than truthful in providing all information to
the Government, since he claimed he had none. Further, since Carter was found guilty of possession
of a firearm while drug trafficking, he plainly did not qualify for safety valve relief. Notwithstanding
Carter’s belief that he should have qualified for a reduction based upon a minimal or minor role, the
district also did not err as to its denial since Carter’s truck provided the means of loading over one
ton of marijuana. See generally Salas, 455 F.3d at 644 (applying clear error standard and affirming
a district court’s denial of minor role sentence adjustment where the defendant played “indispensable
role” in drug operation).
Section 5K2.20 permits a district court to pronounce a sentence below the applicable
Guidelines range in extraordinary cases where a defendant’s criminal offense constituted aberrant
behavior. U.S.S.G. § 5K2.20(a). Denial of a discretionary downward departure is appealable “only
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if the district court mistakenly believed that it did not have the authority to downwardly depart.”
United States v. Christopher, 91 F. App’x 471, 474 (6th Cir. 2004). “‘Aberrant behavior’ means a
single criminal occurrence or single criminal transaction that (A) was committed without significant
planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from
an otherwise law-abiding life.” United States v. Carson, 560 F.3d 566, 589 (6th Cir. 2009) (quoting
U.S.S.G. § 5K2.20 cmt. n.1 (2001)). Unfortunately for Carter, § 5K2.20 does not apply to serious
drug offenses. U.S.S.G. § 5K2.20(c)(3) and cmt. n.1. Therefore, Carter’s sentences are
AFFIRMED.
C. Cordell Sain
Sain appeals, contending that the district court erred by failing to exclude evidence of his
post-indictment conviction for possession with intent to distribute 14.8 grams of marijuana and
status as a felon in possession of a firearm, where the court made its evidentiary ruling contingent
on whether or not Sain raised a “mere presence defense.” Sain also asserts that the Eighth
Amendment’s requirement of comparative proportionality in sentencing precludes the two hundred
forty month sentence of imprisonment that he received since other, purportedly more culpable co-
conspirators received much lesser prison sentences, including the supposed mastermind, Costica
Bonas, who received ninety-seven months’ imprisonment.
1. Contingent Evidentiary Ruling
An evidentiary ruling pursuant to Fed. R. Evid. 404(b) is reviewed for an abuse of discretion.
United States v. Allen, 619 F.3d 518, 523 (6th Cir. 2010).
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Nos. 09-1390/1435/1906
United States v. Costica Lucian Bonas; David Andrew Carter; and Cordell Sain
Prior to admitting Rule 404(b) evidence, the district court must: (1) make a
preliminary finding as to whether sufficient evidence exists that the prior act
occurred; (2) determine whether the other act is admissible for one of the proper
purposes outlined in Rule 404(b); and (3) apply Rule 403 balancing to determine
whether the evidence’s probative value is substantially outweighed by the danger of
unfair prejudice or other concerns embodied in Rule 403.
Id. (citation omitted).
Where a district court erroneously admits evidence of “other acts,” the judgment must be
reversed unless the court “can say, with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment was not substantially swayed by
the error.” United States v. Haywood, 280 F.3d 715,724 (6th Cir. 2002) (quoting Kotteakos v.
United States, 328 U.S. 750, 765 (1946)) (internal quotation marks omitted).
The Government contends that the district court did not enter a definitive ruling on
admissibility since the district court’s order stated that Sain’s post-indictment conviction for drug
possession might be admissible, pursuant to Fed. R. Evid. 404(b), if Sain utilized a “mere presence
defense” at which time the district court would then consider the admissibility of the conviction. R.
217 at 22-25. Rule 404(b) provides that “[e]vidence of other crimes [. . .] is not admissible to prove
the character of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Fed. R. Evid. 404(b). Even if, as Sain
argues, it would have been error for the district court to admit such evidence, that error was never
actually committed. The district court never categorically stated that the post-indictment conviction
would be admitted, nor did the district court allow introduction of Sain’s post-indictment conviction
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Nos. 09-1390/1435/1906
United States v. Costica Lucian Bonas; David Andrew Carter; and Cordell Sain
during trial. Therefore, the issue is not properly before this court since the district court did not issue
a definite ruling on the introduction of the evidence. Accordingly, Sain’s appeal of the evidentiary
issue is DISMISSED.
2. Sentence Reasonableness and Proportionality
Sain further asserts that his sentence amounts to an Eighth Amendment violation for cruel
and unusual punishment based upon a gross lack of proportionality to his co-defendants. “A
constitutional challenge to a sentence is a question of law and reviewed de novo.” United States v.
Jones, 569 F.3d 569, 573 (6th Cir. 2009) (quotation marks and additional citation omitted).
The Eighth Amendment’s prohibition on the infliction of “cruel and unusual punishment”
also forbids an extreme sentence which is “‘grossly disproportionate to the crime’ at issue.” United
States v. Sutton, 406 F. App’x 955, 959 (6th Cir. 2011) (quoting United States v. Flowal, 163 F.3d
956, 963 (6th Cir. 1998)). Sain contends that the sentences he received in comparison to his co-
conspirators are grossly disproportionate, such that his constitutional rights were violated. Since
Sain’s sentence is reasonable it certainly does not violate the Eighth Amendment. Simply put, as
detailed by the Presentence Investigation Report, Defendant Sain earned his status as a career
offender through the fifteen years of mayhem he committed, including multiple assaults with and
without weapons, and domestic abuse. Some co-defendants pled guilty and received lesser
sentences. Sain exercised his right to trial with the pre-trial knowledge that the Government filed
a sentence enhancement. See 21 U.S.C. § 851 (mandating 20 year sentence of imprisonment where
defendant convicted given prior felony drug conviction). No other co-conspirator was a career
offender. Sain’s career offender status resulted in his automatic Sentencing Guidelines
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Nos. 09-1390/1435/1906
United States v. Costica Lucian Bonas; David Andrew Carter; and Cordell Sain
categorization in Criminal History Category VI, yet the district court still reduced Sain’s sentence
to the statutorily mandated minimum of 240 months, below the Guidelines range of 360 months’ to
life imprisonment. Further, Sain’s 240 month sentence was also ordered run concurrent with his 168
month sentence for drug trafficking. See generally United States v. Watford, 468 F.3d 891, 915-16
(6th Cir. 2006) (discussing district court’s authority to run sentences “concurrently, partially
concurrently, or consecutively . . . to achieve a reasonable punishment”). Sain received the 168
month sentence while he was on bond in the instant action. Upon review of the circumstances, we
find the district court’s sentence for his instant offenses reasonable. Sain’s conviction and sentence
should be AFFIRMED.
III. CONCLUSION
Accordingly, for the foregoing reasons, the conviction and sentence of Defendant Bonas are
AFFIRMED. Defendant Carter’s conviction and sentence are AFFIRMED. Defendant Sain’s
appeal is DISMISSED-in-part as moot as to the trial evidentiary issue of the admissibility of a post-
indictment conviction since no final ruling was entered by the district court. Thus, Defendant Sain’s
conviction and sentence are AFFIRMED.
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