United States v. Ronald Averill

NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0056n.06
Nos. 15-5068, 15-5081, 15-5087
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED
) Jan 28, 2016
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
RONALD AVERILL, JENNIFER EARLS, and ) COURT FOR THE EASTERN
CLARENCE MILLS, ) DISTRICT OF KENTUCKY
)
Defendants-Appellants. )
)
BEFORE: BOGGS, GIBBONS, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
A grand jury indicted defendants Ronald Averill, Jennifer Earls, and Clarence Mills for
conspiring to distribute oxycodone. Each defendant pleaded guilty to the charge. Averill
admitted distributing 10,000 oxycodone pills as part of a plea agreement, while Earls and Mills
challenged the number of pills the government attributed to them in their respective presentence
reports (PSRs), and requested an evidentiary hearing. Their strategy backfired. Following the
hearing, the district court concluded that Earls and Mills distributed a greater number of pills
than initially estimated. Defendants appeal their sentences. For the reasons detailed below, we
affirm the district court’s judgment as to each defendant.
Nos. 15-5068, 15-5081, 15-5087
United States v. Averill, et al.
I.
“We review a district court’s sentencing decision for reasonableness, which has both
procedural and substantive components.” United States v. Garcia-Robles, 640 F.3d 159, 163
(6th Cir. 2011) (citations omitted). A sentence within the Guidelines range is presumed
reasonable, “and it is incumbent upon the defendant” to rebut that presumption. United States v.
Evers, 669 F.3d 645, 661 (6th Cir. 2012).
Each defendant contends his or her sentence is procedurally unreasonable. A sentence is
procedurally unreasonable if, for instance, the district court improperly calculates the Sentencing
Guidelines range, treats the Sentencing Guidelines as mandatory, ignores the factors set forth in
18 U.S.C. § 3553(a), renders a sentence based on clearly erroneous facts, or fails to adequately
explain a chosen sentence. Gall v. United States, 552 U.S. 38, 51 (2007). We review preserved
procedural reasonableness claims for an abuse of discretion and unpreserved claims for plain
error. United States v. Davis, 751 F.3d 769, 773 (6th Cir. 2014).
A.
We first address Averill’s procedural challenge. Under the Guidelines, Averill’s 10,000
oxycodone pill-count corresponded to a base offense level of 30, which was reduced to 27 for
acceptance of responsibility. See U.S.S.G. § 2D1.1(c)(5) and § 3E1.1. Combined with a
criminal history category of four, Averill’s resulting Guidelines range was 100 to 125 months.
After weighing the § 3553 factors, the district court sentenced Averill to 120 months’
imprisonment, followed by five years’ supervised release.
Averill faults the district court for sentencing him without considering “significant,
compelling arguments [for] mitigation,” including his “quick acceptance of responsibility,” the
time he served in state prison for drug trafficking, and the fact that he “got sober” and withdrew
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from the conspiracy prior to his arrest. Though Averill raised these arguments at sentencing, he
concedes that our review is limited to plain error because he did not object when “the district
court made the requisite Bostic inquiry.” Evers, 669 F.3d at 661 (footnote and citation omitted).
Averill’s claim fails under this standard: a “district court’s mere failure to fully explain
the extent of its consideration of sentencing factors” does not constitute plain error. United
States v. Houston, 529 F.3d 743, 751 (6th Cir. 2008). Moreover, if plain error could occur in this
context, it did not occur here. The district court considered all of the “compelling” factors
Averill cites in favor of mitigation.
A sentencing court is not required to address each of the defendant’s arguments “head-
on.” United States v. Taylor, 696 F.3d 628, 634 (6th Cir. 2012). Rather, when the sentence is
within the Guidelines range, it is enough that the court “listened to each argument, considered
the supporting evidence, was fully aware of the defendant’s circumstances and took them into
account in sentencing him.” Id. The district court did that for Averill.
First, the court credited Averill for his “quick acceptance of responsibility” by lowering
his base offense level from 30 to 27, in keeping with U.S.S.G. § 3E1.1. “Because the defendant
here received a three-level reduction for acceptance of responsibility, some ‘extraordinary
circumstance’ must be present to warrant further downward departure.” United States v. Biehl,
Nos. 98-3318, 98-3346, 1999 WL 98600, at *3 (6th Cir. Jan. 25, 1999). No “extraordinary
circumstance” is present in this case. Second, the court acknowledged Averill’s efforts at
sobriety, remarking that he “certainly is salvageable,” while recommending parenting classes,
drug treatment, and vocational training. The court did not owe Averill an explanation as to why
this factor did not justify mitigation “given that the issue was simple and it was obvious that the
court had considered his claim from the context.” United States v. Sexton, 512 F.3d 326, 332
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(6th Cir. 2008). Third, the court explicitly addressed Averill’s state-court convictions—finding
that they warranted a greater sentence, instead of a lesser one—since time in state prison failed to
curb Averill’s criminal activity. “My hope would be if there is an appropriate punishment at the
state level, that a person receives that deterrence and is not as inclined to commit another
offense. . . . [B]ut it appears to me that the state system is not sending the message to individuals
that these are serious offenses, and they’ll be dealt with severely, seriously.” Because the
“context and the record . . . make clear” that the district court considered Averill’s arguments, he
has not demonstrated plain error. Taylor, 696 F.3d at 634.
B.
Earls and Mills also assert procedural reasonableness claims, arguing that the district
court clearly erred in determining the quantity of pills attributable to them.
For defendants convicted of drug crimes, the base offense level at sentencing depends
upon the amount of drugs involved in the offense. See U.S.S.G. § 2D1.1(c). If the exact amount
of drugs is undetermined, “[a]pproximations are completely appropriate.” United States v.
Hernandez, 227 F.3d 686, 699 (6th Cir. 2000). The prosecution must prove the quantity of drugs
attributable to the defendant by a preponderance of the evidence. United States v. Jackson,
470 F.3d 299, 310 (6th Cir. 2006). The court’s approximation should be “supported by
competent evidence,” with a “minimal level of reliability beyond mere allegation, and the court
should err on the side of caution in making its estimate.” United States v. Jeross, 521 F.3d 562,
570 (6th Cir. 2008) (citation omitted). As a factual finding, the district court’s quantity
determination is affirmed unless clearly erroneous. Jackson, 470 F.3d at 310.
At the outset, Mills’ PSR estimated a total quantity of 10,000 pills, amounting to a base
offense level of 30, which was then lowered to 27 for acceptance of responsibility. With a
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criminal history category of five, Mills’ resulting Guidelines range was 120 to 150 months.
Earls’ PSR stated she distributed approximately 3,000 oxycodone pills, corresponding to a base
offense level of 26, which was also reduced to 23 for acceptance of responsibility. Combined
with a criminal history category of three, Earls faced a Guidelines range of 57 to 71 months’
imprisonment. Both defendants objected to the government’s pill count, prompting the court to
hold an evidentiary hearing on the issue.
At the hearing, Drug Enforcement Agency (DEA) Special Agent Brian Metzger testified
that the government’s calculations were based on information gleaned through a series of witness
interviews and controlled buys. DEA Officer Gerald Hughes conducted most of the interviews,
with Metzger present for “several” of them. Metzger communicated with Hughes throughout the
investigation and assumed responsibility for the case when the DEA transferred Hughes.
He explained the substance of the interviews based on his review of the investigation materials.
According to Metzger, Dan Mosier offered the DEA the most specific information
regarding drug quantity. Mosier served a 30-day house arrest in the home Mills shared with
girlfriend Judith Meadors, a coconspirator who pleaded guilty to distributing 3,000 oxycodone
pills. During his house arrest, Mosier witnessed Averill and Earls supply Mills with oxycodone
on a daily basis, giving him 10 to 30 pills at a time, two to three times a day. Mosier estimated
that Averill and Earls acted as Mills’ suppliers for roughly a year and a half, between October or
November 2011 and March 2013.
Other witnesses reported that Mills’ history as an oxycodone dealer began years before
his involvement with Averill and Earls. One unnamed witness bought pills from Mills for “five
to six years” prior to his 2012 interview with the DEA. The unidentified individual purchased
roughly 80 pills at a time, though without saying how often the sales occurred. Witness Anthony
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Damron also bought drugs from Mills “regularly,” from the “late 90s” to 2002, specifying that he
purchased two pills a day, every day, between 2000 and 2002. Thereafter, Damron continued as
a “[s]poradic[,] . . . [i]ntermittent[]” customer until November 2012. Ashley Sulfur was another
of Mills’ daily customers, buying 6 to 10 oxycodone pills every day for three to four years. Still
another witness, Kathy Willard, reported buying 50 to 60 pills from Mills a month, over a six-
month period between June 2012 and January 2013. Finally, James Lee stated that he and
girlfriend Heather Cobb purchased 10 to 20 pills from Mills every other day over approximately
a year and a half. “[A]t some point” within that timeframe, Lee “cut out Mr. Mills . . . as kind of
the middleman,” and started buying directly from Averill and Earls. Lee pleaded guilty to
conspiring to distribute oxycodone, admitting responsibility for 4,000 pills.
Metzger testified that Earls was “present” with Averill for four of the DEA’s controlled
buys, each of which involved the purchase of 30 to 50 oxycodone pills. Her actions
demonstrated knowledge of the conspiracy. For instance, on one occasion, Earls answered an
informant’s call to set up the transaction. Another time, she “passed [the pills] directly” to the
informant. Metzger described Earls as an equal partner to Averill in the conspiracy.
“[E]verybody we interviewed never just said Ron, or they never just said Jennifer. It was always
Ron and Jennifer or Jennifer and Ron. So I believe everyone thought them to be equal.”
Defendants called United States Probation Officer Richard Mills as their only witness.
Officer Mills explained the Probation Department rendered its quantity estimates by considering
the numbers provided by the witnesses in conjunction with the frequency of their purchases, as
well as the pleas entered by Averill, Lee, and Meadors, who admitted responsibility for 10,000,
4,000, and 3,000 pills respectively. The Department based its calculations on the “low end” of
each number range identified by the witnesses to reflect a “conservative” estimate. However,
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after hearing Metzger’s testimony, Officer Mills opined that the Department had been too
conservative; he now believed Mills’ actual pill count was closer to 14,000 or 16,000, and Earls’
was closer to 5,000.
The district court agreed. It found Mills responsible for 14,000 oxycodone pills and Earls
responsible for 5,000 pills. For Mills, the increased pill count did not affect his base offense
level or the Guidelines range of 120 to 150 months, but was weighed at sentencing along with
the § 3553 factors. For Earls, by contrast, a finding of 5,000 oxycodone pills meant an increased
base offense level, implicating the district court’s notice obligations under Federal Rule of
Criminal Procedure 32(h).1 “[T]o eliminate th[e] entire issue,” the court declined to increase
Earls’ base offense level, opting instead to do what it did for Mills and consider the higher pill
count along with the § 3553 factors at allocution.
Ultimately, the court sentenced Earls to 71 months’ imprisonment, followed by five
years’ supervised release. It sentenced Mills to 125 months’ imprisonment (including 10
months’ credit for time served in state prison), also followed by five years’ supervised release.
Earls and Mills argue the district court’s drug-quantity findings are clearly erroneous
because they are based on double hearsay relayed through Metzger. But the hearsay character of
evidence was not a bar to its consideration. “Generally, the Federal Rules of Evidence do not
apply to sentencing proceedings,” United States v. Moncivais, 492 F.3d 652, 658 (6th Cir. 2007),
and “sentencing judges are not restricted to information that would be admissible at trial.”
U.S.S.G. § 6A1.3 cmt. Instead,
1
That rule requires the sentencing court to provide the parties “reasonable notice” before
“depart[ing] from the applicable sentencing range on a ground not identified for departure either
in the presentence report or in a party’s prehearing submission.” Fed. R. Crim. P. 32(h).
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[i]n resolving any dispute concerning a factor important to the sentencing
determination, the court may consider relevant information without regard to its
admissibility under the rules of evidence . . . provided that the information has
sufficient indicia of reliability to support its probable accuracy.
Moncivais, 492 F.3d at 658–59 (quoting U.S.S.G. § 6A1.3(a)). Establishing the minimum
indicia of reliability for disputed information is “a relatively low hurdle.” Id. at 659. As long as
the government presents “some evidentiary basis beyond mere allegation in an indictment,” the
hurdle is cleared, and the information can be taken as fact at sentencing. Id.
Defendants assert that the informants’ statements in this case are inherently unreliable
because the witnesses faced arrest and had an incentive to implicate others. We disagree. More
than once, we have “refused . . . to categorically exclude from sentencing consideration a
coconspirator’s hearsay statements as ‘inherently’ or ‘presumptively’ unreliable.” United States
v. Johnson, 732 F.3d 577, 583 (6th Cir. 2013); see, e.g., Moncivais, 492 F.3d at 659–60.
“Testimonial evidence from a co-conspirator may be sufficient to determine the amount of drugs
for which a defendant should be held accountable, even where the co-conspirator has reason to
believe that he may receive a reduced sentence as a result of his or her testimony.” United States
v. Henley, 360 F.3d 509, 516 (6th Cir. 2004). Statements by coconspirators may be accorded
greater weight where they corroborate one another, or are substantiated by other circumstantial
evidence. Johnson, 732 F.3d at 583.
Here, other evidence corroborated Mosier’s statement against Earls. Metzger testified
that all witnesses considered Earls an equal to Averill in the drug trade. Indeed, Earls
participated in the same controlled buys as Averill and, at some point, she and Averill began
selling directly to Lee and Cobb. Mosier stated that Earls and Averill (together) supplied Mills
with 10 to 30 pills at a time, two to three times a day for a year and a half, for a conservative
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total of 10,960 pills (20 x 548 days), a number matching Averill’s plea of responsibility for
10,000 pills. Officer Mills recommended reducing the 10,960 pill total to 5,000 to account for
the fact that Earls had been a coconspirator for a shorter time period than Averill.
Attempting to rebut this evidence, Earls’ counsel represented that she was involved in the
conspiracy only for the duration of her romantic relationship with Averill—specifically, the six-
month period between December 2012 and June 2013. Counsel later acknowledged, however,
that Earls gave birth to the couple’s child in March 2013, meaning her relationship with
Averill—and her participation in the conspiracy—dated back further, just as Mosier reported.
While the district court acknowledged Mosier may have had “a motive . . . to puff,” “[t]here
[wa]s no advantage or disadvantage for him to put that date a year-and-a-half prior to March
2013.” The start of Mosier’s timeline (sometime in late 2011) roughly coincided with Averill’s
release from state prison, lending his statement additional credibility. Earls did not draw the
lower court’s attention to “anything that’s inconsistent with [Mosier’s] . . . statements” and does
not challenge its decision to calculate drug quantity according to the duration of her participation
in the conspiracy.2 She identifies no basis to conclude that the district court’s finding of
5,000 oxycodone pills was clearly erroneous.
The evidence behind Mills’ pill count is even more substantial. Mosier’s claim that
Averill and Earls supplied Mills with 10,960 pills was corroborated by five other witnesses who
reported buying significant amounts of oxycodone from Mills for months or years at a time.
Their statements in turn confirmed Mosier’s assertion that he saw Mills conduct “no less than
2
Insofar as Earls believes the district court’s finding of 5,000 pills was grounded in a
conclusion that the entire conspiracy involved a total of 14,000 pills in its last year and a half,
she is wrong. The district court rendered an individualized pill count for Earls based largely on
Mosier’s timeline.
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100 transactions a day” during his house arrest. Not all witnesses provided numbers as specific
as Mosier, but those who did placed Mills comfortably over the 14,000 mark. For instance,
witness Ashley Sulfur bought between 6 and 10 pills from Mills every day for three or four
years. Subtracting the year and a half period that Mills was supplied by Averill and Earls to
avoid double-counting, Mills sold Sulfur a minimum of six pills a day for a year and a half,
resulting in a conservative estimate of 3,288 oxycodone pills (6 x 548 days). Thus, without
regard to the other witnesses, the accounts from Mosier and Sulfur alone establish that Mills
distributed at least 14,248 oxycodone pills. See Jeross, 521 F.3d at 571 (upholding the trial
court’s sentence for 100,000 Ecstacy pills where the evidence “suggest[ed] that the conspiracy
involved well over 100,000 pills”). Mills does not undermine the probative value of the witness
statements by dismissing them as hearsay from “addict-informants” who participated in the same
conspiracy he did. See Moncivais, 492 F.3d at 659–60 (“Defendant points to nothing about
Laurel’s proffer statement that suggests that it is unreliable, beyond its character as hearsay and
the fact that Laurel was involved in the same conspiracy as Defendant.”). As the district court
found, “when we look at corroboration in the case of all these other folks, it does tend to indicate
that this conspiracy . . . involved . . . a pretty significant number of pills.” The district court’s
finding that Mills was responsible for 14,000 pills was supported by a preponderance of the
evidence, and defendants have not rebutted the presumption that their within-range sentences are
procedurally reasonable. Evers, 669 F.3d at 661.
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C.
Lastly, Averill contends his sentence is substantively unreasonable.3 “A sentence is
substantively unreasonable if the sentencing court arbitrarily selected the sentence, based the
sentence on impermissible factors, failed to consider pertinent § 3553(a) factors, or gave an
unreasonable amount of weight to any pertinent factor.” United States v. Cunningham, 669 F.3d
723, 733 (6th Cir. 2012). We review substantive reasonableness for an abuse of discretion.
United States v. Woodward, 638 F.3d 506, 510 (6th Cir. 2011). Again, here, a within-range
sentence is presumed reasonable, Cunningham, 669 F.3d at 773, and “[t]he defendant shoulders
the burden of showing substantive unreasonableness,” Woodward, 638 F.3d at 510.
Averill’s belief that “a sentence of far less than 120 months would have been sufficient”
does not carry that burden. The defendant’s personal dissatisfaction with his sentence “is not a
cognizable basis to appeal, particularly where the district court followed the mandate of section
3553(a) in all relevant respects.” United States v. Jackson, 466 F.3d 537, 540 (6th Cir. 2006).
It is not enough “that, given his personal characteristics, a different sentence was justified”;
Averill must prove that “a different sentence was required.” United States v. Brown, 579 F.3d
672, 687 (6th Cir. 2009). A different sentence was not required in this instance, “and that is all
we have license to consider.” United States v. Overmyer, 663 F.3d 862, 864 (6th Cir. 2011).
Accordingly, Averill has not demonstrated an abuse of discretion.
II.
We affirm the district court’s judgment in each case.
3
Mills repackages his procedural argument that the government’s evidence was unreliable
as a challenge to substantive reasonableness. For the reasons previously stated, we reject that
challenge.
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