United States v. Tracey Smith-Kilpatrick

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0276p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 18-1671
v. │
│
│
TRACEY SMITH-KILPATRICK, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 2:17-cr-00005—Gordon J. Quist, District Judge.
Argued: October 22, 2019
Decided and Filed: November 7, 2019
Before: GUY, BUSH, and MURPHY, Circuit Judges.
_________________
COUNSEL
ARGUED: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant Tonya
Long, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Scott Graham, SCOTT GRAHAM PLLC, Portage, Michigan, for Appellant
Tonya Long, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for
Appellee.
_________________
OPINION
_________________
RALPH B. GUY, JR., Circuit Judge. A jury convicted defendant Tracey Smith-
Kilpatrick of conspiring to distribute cocaine and heroin. She was sentenced to 96 months of
imprisonment. She now appeals, raising three arguments: (1) the trial court made evidentiary
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errors, (2) no rational jury could have convicted her based on the evidence, and (3) her sentence
was procedurally and substantively unreasonable. We affirm.
I. BACKGROUND
James Wilson lived in southeast Michigan, but he wanted to sell heroin in the state’s
Upper Peninsula. So in 2014 he started recruiting a team near Escanaba and soon taught a
handful of confederates how to package, transport, price, and sell the drug. The conspirators
grew in number and the operation settled into a routine. Wilson stayed in the Lower Peninsula
and sourced the drugs while others drove down, picked up the drugs, and drove them back to the
Upper Peninsula. Members of the operation then sold the drugs throughout the Upper Peninsula
and wired money back to Wilson. When the amount of money became too suspicious for wire
transfers, the drug runners started carrying cash on their resupply trips to Wilson.
Over time, the conspiracy began to distribute crack cocaine as well, and to a wider
geographic area, but the general mechanics of the conspiracy remained the same. One constant
was the way the drugs were transported. To avoid detection in the event of a run-in with police,
one or two women would travel as passengers to pick up the drugs from Wilson. The women
would conceal the drugs in their vaginal cavities until arriving back in the Upper Peninsula. The
drugs were then removed and sold.
Eventually the state police caught on. A member of the conspiracy went to the police
with information and they set up controlled buys that confirmed the trafficking of drugs.
Subsequent police raids turned up heroin and crack cocaine, cash, a drug ledger, cell phones, and
MoneyGram receipts that listed who sent and received money.
The information found on the phones proved valuable. The police extracted the phones’
call logs and contact lists. They then obtained call records and subscriber information from the
phone companies via subpoena. The phone records revealed a network of coconspirators
cooperating between the Upper and Lower Peninsulas.
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Smith-Kilpatrick was indicted along with Wilson, his mother Jacklyn, Rachel DeBruler,
and Brandy Rupright. Wilson and Rupright pleaded guilty, but Smith-Kilpatrick, DeBruler, and
Jacklyn Wilson went to trial. All three were convicted. Smith-Kilpatrick now appeals.
II. DISCUSSION
A. The Records
Prior to trial, the government moved to admit several types of documents: records of
phone calls and wire transfers, hotel records, and car rental documents. In doing so, the
government relied on the hearsay exception for records of a regularly conducted activity. See
Fed. R. Evid. 803(6). And it contended that the records were self-authenticating because each
record was accompanied by an affidavit from its custodian. See Fed. R. Evid. 902(11).
The records varied, but a salient feature of each was that it identified one or more people
by name. For instance, a wire-transfer record revealed that a man named Isaac Cooley sent
“Tracey Smith-Kilpatrick” money on January 12, 2015. And a record from a car rental company
reported that “Tracey Kilpatrick” rented a particular GMC Terrain on September 30, 2015.
Smith-Kilpatrick objected to the records entering into evidence on the ground that their
admission would violate her rights under the Confrontation Clause of the Sixth Amendment.
She conceded that the documents were indeed business records that qualified for a hearsay
exception under Rule 803(6). But she asserted that because the records implicated her by name,
they suggested that it was actually she who conducted the transaction. In her view, this made
them testimonial. She conceded that the records could come into evidence, but their testimonial
nature meant that they could not be self-authenticated through affidavits. Rather, a cross-
examinable witness was required; one who could testify that it was indeed Smith-Kilpatrick who,
for instance, received the money or rented the car and not merely someone using her name.
The district court rejected her argument. It reasoned that the records were not prepared in
anticipation of prosecution and were non-testimonial, so they did not run afoul of the
Confrontation Clause. In the court’s view, Smith-Kilpatrick’s argument that another person
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might have used her name went to the weight of the evidence, not its constitutionality or
admissibility. The court therefore admitted the exhibits into evidence.
Smith-Kilpatrick asserts this was error, claiming both a violation of the Confrontation
Clause and errors under the Federal Rules of Evidence. We review the Confrontation Clause
challenge de novo and the evidentiary rulings for abuse of discretion. United States v. Warman,
578 F.3d 320, 345 (6th Cir. 2009).
1. Constitutionality
The Sixth Amendment guarantees that “the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. Const. amend. VI. The Supreme Court
identified the contours of this guarantee in Crawford v. Washington and held that prior
testimonial evidence was inadmissible against a criminal defendant unless the witness was
unavailable and the defendant had a prior opportunity for cross examination. 541 U.S. 36, 68
(2004). The Court’s Crawford opinion also gave some guidance for defining “testimonial
evidence.” It observed that “testimony”—as that term was used when the Sixth Amendment was
ratified—is “typically a solemn declaration or affirmation made for the purpose of establishing
or proving some fact.” Id. at 51 (quoting 2 N. Webster, An American Dictionary of the English
Language (1828)) (alteration adopted). Thus, for instance, the affidavits of laboratory analysts in
subsequent cases were deemed testimonial, requiring the analyst to appear at trial and attest to
the truth of the statements in the lab reports. See Bullcoming v. New Mexico, 564 U.S. 647(2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
Although Crawford did not involve records of a regularly conducted activity, the Court
remarked that “business records” covered by the traditional hearsay exception are “by their
nature” not testimonial. 541 U.S. at 56. See also Michigan v. Bryant, 562 U.S. 344, 392 (2011)
(Scalia, J., dissenting) (quoting Melendez–Diaz, 557 U.S. at 324) (noting that the Sixth
Amendment generally admits business records into evidence “not because the records are
reliable or because hearsay law says so” but “‘because—having been created for the
administration of an entity’s affairs and not for the purpose of establishing or proving some fact
at trial—they are not’ weaker substitutes for live testimony.”). Other courts have reached this
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issue more directly and held that the same types of business records at issue in this case are not
testimonial and thus do not implicate the Confrontation Clause. See, e.g., United States v.
Brown, 822 F.3d 966, 974 (7th Cir. 2016) (holding that Western Union and MoneyGram records
were not testimonial because they “were routine and prepared in the ordinary course of business,
not in anticipation of prosecution”); United States v. Yeley-Davis, 632 F.3d 673, 679 (10th Cir.
2011) (holding that cell phone records were not testimonial because they were created for the
administration of the phone company’s affairs “and not for the purpose of establishing or proving
some fact at trial”).
We reach the same conclusion here. The contested records in this case were company
documentations of wire transfers, phone calls, car rentals, and hotel stays. No one disputes that
Smith-Kilpatrick’s name was entered into these records as part of the ordinary course of creating
them for business purposes. And no one suggests that the creators of the records thought that, by
entering her name, they were making solemn declarations or that their identifications would
likely be used to accuse a criminal defendant. A reasonable person observing the records’
creation would not have thought so either. These are the hallmarks of testimonial evidence and
they are missing. Compare Williams v. Illinois, 567 U.S. 50, 84 (2012) (Alito, J., plurality
opinion) with id. at 104 (Thomas, J., concurring) and id. at 121 (Kagan, J., dissenting). See also
United States v. Collins, 799 F.3d 554, 586 (6th Cir. 2015) (“[I]t is improbable that a pharmacy
employee running a standard identification check of a customer would have anticipated that the
records of that transaction would later be used against these particular defendants at trial.”). The
records were not testimonial and thus did not implicate the Confrontation Clause.
The admission of the summaries of those records did not violate the Confrontation Clause
either. Some of the records were voluminous, so the court admitted summaries of them pursuant
to Rule 1006. Such summaries can “theoretically be the subject of a Confrontation Clause
challenge in a case where the individual who prepared the chart was not available for cross-
examination.” United States v. Williams, 662 F. App’x 366, 376 n.6 (6th Cir. 2016). But here,
the person who prepared each summary testified at trial and was cross-examined. Thus, even if
the summaries qualified as testimonial, the court did not violate the Confrontation Clause by
admitting them.
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2. Admissibility
Constitutionality does not guarantee admissibility. Smith-Kilpatrick argues that even if
the records did not run afoul of the Sixth Amendment, they still should not have come into
evidence. Her reasoning is essentially the same: there were inadequate assurances that the person
who rented the cars, received the money, and so forth was in fact Smith-Kilpatrick and not an
imposter. Accordingly, Smith-Kilpatrick contends that the records and summaries were
irrelevant, not self-authenticating, and inadmissible hearsay.
A. Relevance
Under the Federal Rules of Evidence, an item of evidence is admissible only if it is
relevant, i.e., only if it tends to make a consequential fact more or less probable than it would be
without the evidence. Fed. R. Evid. 401, 402. Absent some other infirmity, all of these records
pass that test. The government had to prove, among other things, that there was indeed a
conspiracy. See United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005). Witnesses
testified there was a conspiracy and explained how it involved renting cars, using hotel rooms,
wiring money, and corresponding with cell phones. The records confirmed that these activities
occurred and added detail. The records would therefore be relevant on that basis alone. But the
inclusion of Smith-Kilpatrick’s name in the records also made them relevant to prove her
involvement because they made it more probable that she participated in these activities. Smith-
Kilpatrick was of course free to argue that someone else might have used her name while
conducting each of those transactions. But that argument goes to the weight of the evidence, not
its admissibility. See United States v. Causey, 834 F.2d 1277, 1286 (6th Cir. 1987). The district
court did not abuse its discretion in deeming the records relevant.
B. Self-Authenticating
The Rules also require authentication: a proponent who wishes to enter an item into
evidence “must produce evidence sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). Some forms of evidence can be self-
authenticating and Rule 902(11) is the applicable self-authentication rule in this case. Under it, a
record is self-authenticating if it is a copy of a “domestic record that meets the requirements of
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Rule 803(6)(A)–(C), as shown by a certification of the custodian or another qualified person that
complies with a federal statute or a rule prescribed by the Supreme Court.” Fed. R. Evid.
902(11). The only other requirement is that “[b]efore the trial or hearing, the proponent must
give an adverse party reasonable written notice of the intent to offer the record—and must make
the record and certification available for inspection—so that the party has a fair opportunity to
challenge them.” Id.Smith-Kilpatrick does not suggest that she was not given this opportunity, nor does she
attack the custodians’ certificates, so we turn our attention to the three requirements borrowed
from Rule 803(6):
(A) the record was made at or near the time by—or from information transmitted
by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a
business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
Fed. R. Evid. 803(6). The disputed records all satisfy these requirements and, in fact, neither
party truly suggests otherwise. No one disputes, for instance, that an Avis employee created a
record on September 30, 2015, memorializing that the company lent out a GMC Terrain. Nor
does anyone dispute that Avis makes and keeps this kind of record in the regular course of its
business. Smith-Kilpatrick claims the person who rented the car may have been an imposter, but
even if that were so, the deceived Avis employee would still be a person “with knowledge” of
the transaction. The transaction would just misrepresent who in fact drove off in the rented car.
The accuracy of a record is of course important. But that is why Rule 803(6) provides an
additional requirement to exempt a record from the rule against hearsay. A record of a regularly
conducted activity is not exempted from the rule against hearsay—and thus inadmissible—if the
opponent shows “that the source of information or the method or circumstances of preparation
indicate a lack of trustworthiness.” Fed. R. Evid. 803(6)(E). This is the safeguard against
imposters, not subsection (A)’s requirement that the record creator be “someone with
knowledge.” Fed. R. Evid. 803(6)(A).
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For this reason, Smith-Kilpatrick’s imposter theory is misplaced in challenging the
records’ ability to self-authenticate. Rule 902(11) does not require Rule 803(6)(E) to be
satisfied; just (A)–(C). Thus, even if an imposter impersonated Smith-Kilpatrick when renting
cars, receiving money, staying in hotels, and conducting phone calls, the records of those
transactions would be no less authentic. This makes sense, because self-authentication is not
concerned with the accuracy of a record, but rather, providing a streamlined method of ensuring
that a document is indeed what its proponent claims it is. See Fed. R. Evid. 901(a). The
government claimed these were records of transactions involving someone who gave the name
Tracey Smith-Kilpatrick—which is precisely what they are, imposter or not. The district court
properly deemed the records self-authenticating.
C. Hearsay
We next consider whether the records were hearsay, which does implicate their accuracy.
Hearsay is inadmissible, absent an exception. Fed. R. Evid. 802. As already noted, Rule
803(6)(E) exempts records from the hearsay bar only if “the opponent does not show that the
source of information or the method or circumstances of preparation indicate a lack of
trustworthiness.” Fed. R. Evid. 803(6)(E). The opponent’s showing of untrustworthiness must
be specific and credible. United States v. Hathaway, 798 F.2d 902, 907 (6th Cir. 1986). Short of
that, and assuming a proper foundation has been laid, “the proper approach is to admit the
evidence and permit the jury to determine the weight to be given the records.” Id. We therefore
turn our attention to how each of these records came into evidence.
Hotel Records
Early in the trial, Alisha St. Vincent testified for the government. She explained how she
transported drugs for the conspiracy in the early part of 2015 and mentioned meeting Smith-
Kilpatrick at the Super 8 motel in St. Ignace, Michigan. Later in the trial, the government called
Sergeant Ronald Koski to the stand and drew his attention to a billing record from that same
motel. Koski confirmed that it had been obtained via subpoena and the government successfully
moved for its admission. The record listed the registered guest as Smith-Kilpatrick and the
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guest’s address was in West Bloomfield—the same address where Koski had seen Smith-
Kilpatrick.
Neither the direct nor cross examination of these witnesses gave reason to doubt the
trustworthiness of the preparation of the hotel records. True, Smith-Kilpatrick drew out details
that might have supported her theory that someone else used her name to register at the hotel.
For instance, Wilson lived with Smith-Kilpatrick at the West Bloomfield address and Brandy
Rupright had been there before, so both of them would have known the address and could have
provided it to the hotel. And there were discrepancies in St. Vincent’s recollection of the order
of events involving Smith-Kilpatrick’s alleged stay at the hotel. But this testimony did nothing
to shake the trustworthiness of the hotel records themselves. It was not an abuse of discretion to
admit them.
Wire Transfers
During trial, a government witness, Isaac Cooley, testified that he sent money via wire
transfers as part of the conspiracy. This led the government to show him a summary of wire
transfer records. After looking at the exhibit, Cooley confirmed he wired money to Smith-
Kilpatrick on a particular date.
Later in the trial, the government called to the stand James Lewandowski, an employee at
the Walmart in Marquette, Michigan, where the conspiracy partially took place. On direct
examination, Lewandowski confirmed that he was knowledgeable about Walmart’s wire-transfer
protocols and testified that Walmart requires senders and receivers to show photo identification.
The court later admitted the records and summaries of the transfers into evidence.
On cross examination, Smith-Kilpatrick’s attorney asked him about video surveillance
that would have recorded the people conducting a wire transfer. Lewandowski confirmed that
any transaction would have been captured on video. In closing arguments, Smith-Kilpatrick
pointed out that the government could have obtained the surveillance videos to prove its case, but
it failed to do so.
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Smith-Kilpatrick sowed seeds of doubt, but not so many that the wire-transfer records
could not come into evidence. The government laid a foundation, which left Smith-Kilpatrick to
show specific and credible evidence that the records were untrustworthy. See Hathaway, 798
F.2d at 907. The lack of surveillance footage gave the jury an opportunity to doubt the
transactor’s true identity, but it did nothing to impugn the records themselves. It was not an
abuse of discretion to admit them.
Car Rentals
Brandy Rupright testified to personally renting cars with Smith-Kilpatrick on two
occasions and explained that the two of them had to show their driver’s licenses to receive the
vehicles. When Koski took the stand, he explained that he had obtained records from the car
rental company via subpoena. The government then successfully moved for the admission of the
records.
Smith-Kilpatrick cross-examined both Rupright and Koski, but in neither instance did she
address the car rentals, much less the reliability of the records. Consequently, her imposter
theory does nothing to render these business records inadmissible. Rupright’s testimony
confirmed that identification was required to rent the cars and Smith-Kilpatrick failed to show
specific and credible reasons that the car rental records were untrustworthy. Cf. Hathaway,
798 F.2d at 907. It was not an abuse of discretion to admit them.
Phone Records
The phone records and their summaries also came in through Koski’s testimony. Koski
explained how the police obtained the phone records and he explained how he turned those
records into summaries. As he gave his explanations, the government moved for the admission
of the records and the summaries. One exhibit was the record of calls made to and from a phone
number ending in 4447. The government asked Koski if he was able to identity whom the
number belonged to. Koski answered that the subscriber to that number was “Charles Wheeler,”
a “known alias of James Wilson.” But he explained that the number was used by both James
Wilson and Smith-Kilpatrick.
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As these exhibits came into evidence, Smith-Kilpatrick reiterated her standing objection
based on the Confrontation Clause. And on cross examination, she pursued the idea that it may
have been Wilson, and not Smith-Kilpatrick, who used the phone. But she never challenged the
trustworthiness of the phone records themselves. Nor did she challenge the trustworthiness of
the summaries. It was not an abuse of discretion to admit them.
B. The Co-Conspirator Statements
The government moved to admit several out-of-court statements made by people who did
not testify at trial. Smith-Kilpatrick objected on the grounds that the statements were hearsay,
but the district court admitted them into evidence because it found they were made by
coconspirators and thus not hearsay. See Fed. R. Evid. 801(d)(2)(E). Smith-Kilpatrick asserts
this was error.
A statement is not hearsay if it is offered against an opposing party and “was made by the
party’s coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E).
To introduce such statements as evidence, the government bears the burden of showing three
things by a preponderance of the evidence: (1) a conspiracy existed, (2) the defendant was a
member of the conspiracy, and (3) the statement was made in the course and furtherance of the
conspiracy. United States v. Martinez, 430 F.3d 317, 325 (6th Cir. 2005). The district court
must then make findings on each of these. Id. We review those factual findings for clear error,
and we review the decision to admit such statements for abuse of discretion. Id. at 326.
Smith-Kilpatrick argues that the government failed to show that she was a coconspirator.
Her argument is essentially threefold. First, the evidence against her came from self-interested
drug addicts who stood to benefit from lightened sentences, so it counted for little. Second, there
was inadequate proof that she was actually the person who received the wire transfers and rented
the cars (an argument akin to the claims we have already discussed). And third, the phone calls
attributed to her might easily have been made by Wilson; the two shared a phone and, by all
accounts, he was at the center of the conspiracy.
Her arguments fail because there was ample evidence for the district court to find that
Smith-Kilpatrick was a coconspirator. Isaac Cooley testified to conversing with Smith-
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Kilpatrick about sourcing crack cocaine and about how, at Smith-Kilpatrick’s prodding, he
demonstrated to her that he could properly package heroin. He also testified that Smith-
Kilpatrick personally transported drugs on one occasion. Brandy Rupright testified that she and
Smith-Kilpatrick packaged crack cocaine and heroin. And Alisha St. Vincent testified to a
meeting in a motel room during which Smith-Kilpatrick handed her a condom filled with heroin
so that St. Vincent could transport it.
The district court was free to disbelieve this testimony, but it was not clearly erroneous to
believe it. Nor would it have been clearly erroneous to conclude that Smith-Kilpatrick truly
received the wire transfers, rented the cars, and made the phone calls. The district court did not
clearly err in finding that Smith-Kilpatrick was a co-conspirator for the purposes of Rule 801, so
the admission of the statements was not an abuse of discretion.
C. Sufficiency of the Evidence
Through a special verdict form, the jury found Smith-Kilpatrick guilty of conspiring to
possess with the intention to distribute fewer than 100 grams of heroin and 28 grams or more of
cocaine base. Smith-Kilpatrick claims there was not enough evidence to support this finding
beyond a reasonable doubt. We review sufficiency-of-the-evidence claims in the light most
favorable to the prosecution and ask whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Martinez, 430 F.3d at 330 (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The government had to prove three things: (1) there was an agreement to violate
21 U.S.C. § 841(a)(1); (2) Smith-Kilpatrick knew of the conspiracy and intended to join it; and
(3) she participated in the conspiracy. Id. On appeal, Smith-Kilpatrick does not dispute that
there was a conspiracy or that she knew about it. She simply insists that there was not enough
evidence to prove that she was a part of it or even intended to get involved. Her arguments in
support of this claim are mostly an amalgam of what we have already discussed: the money
transfers and phone calls may have been conducted by someone else and the witnesses who
testified to her involvement were “self-interested cooperating drug abusers[.]” She adds that
many members of the conspiracy admitted that they did not know her and had never met her.
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These arguments fail. To begin, a defendant need not know every member of the
conspiracy, the acts of other members, or even the full extent of the conspiracy to be held
responsible for the acts of other members. See United States v. Carr, 5 F.3d 986, 990 (6th Cir.
1993). The obverse is equally true: a defendant may be found guilty of participating in a
conspiracy, even if some of the other members did not know she was a part of the enterprise.
And “once the existence a conspiracy is shown, the evidence linking an individual defendant to
that conspiracy need only be slight.” United States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006).
Here, there was voluminous evidence explaining the scope and nature of the conspiracy and
several witnesses testified to Smith-Kilpatrick’s direct involvement in packaging, transporting,
and financing the sale of drugs—activities at the heart of the conspiracy.
Her remaining arguments about witness reliability and the possibility that someone else
took actions in her name are no reason to set aside the jury’s verdict. “The government may
meet its burden through circumstantial evidence alone, and such evidence need not exclude every
possible hypothesis except that of guilt.” United States v. Jackson, 55 F.3d 1219, 1225 (6th Cir.
1995). The government introduced testimony and records directly implicating Smith-Kilpatrick
in the transactions undergirding the conspiracy: wire transfers, car rentals, drug transports, and
phone calls between the various conspirators. She proposed alternative explanations, but the jury
believed the government. The evidence supports that finding and we may not reweigh it “or
substitute our judgment for that of the jury.” Martinez, 430 F.3d at 330.
D. Sentencing
Smith-Kilpatrick’s final argument attacks the 96-month sentence she received. First, she
asserts that the drug quantity that the district court attributed to her was too high, thus resulting in
a procedurally unreasonable sentence. And second, she asserts that her sentence is substantively
unreasonable because it fails to adequately account for her particular circumstances. When
reviewing a sentence, we look for abuse of discretion. Gall v. United States, 552 U.S. 38, 51
(2007). A sentencing court’s determination of drug quantity is specifically reviewed for clear
error, and when a sentence falls below the applicable Guidelines range, we presume it is
substantively reasonable. United States v. Pirosko, 787 F.3d 358, 374 (6th Cir. 2015); United
States v. Treadway, 328 F.3d 878, 883 (6th Cir. 2003).
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1. Procedurally Unreasonable
The probation office concluded in its presentence report that the conspiracy distributed a
total of 694.75 grams of heroin and 127.75 grams of cocaine base. Together, these amounted to
1,150.95 kilograms of marijuana equivalent. See USSG § 2D1.1, cmt. n.8(D) (2016). The
presentence report recommended that Smith-Kilpatrick “be held accountable for the entire drug
weight involved in the conspiracy” because she “conspired with [James] Wilson to organize the
distribution of both heroin and cocaine base” and “shared the residence with [him] that was
maintained as a premise for packaging and distributing drugs.” The report therefore suggested a
base offense level of 30. See id. § 2D1.1(c)(5).
Smith-Kilpatrick objected. She maintained that she should not be held responsible for the
heroin because, according to witness testimony, the conspiracy had different people in charge of
the two substances. She averred that the government failed to prove her involvement in the
heroin side of the operation, and thus she should be held responsible only for the cocaine. By
that measure, her base offense level would have been 26, not 30. See id. § 2D1.1(c)(7).
The court overruled her objection at sentencing. The sentencing judge had presided over
the trial and observed that, based on the trial testimony, Smith-Kilpatrick “always seems to be
there. . . . [S]he’s involved in all aspects of this. I mean she was involved in the money aspect,
she was involved in the transportation aspect, she was involved with the packaging aspect[.]” In
the court’s view, “to say that she didn’t know that she was trafficking in heroin just doesn’t fit
with any of the facts in the case. I mean she’s there. She’s living with [Wilson], for crying out
loud, that’s doing all this.” The court recognized the testimony suggesting that Wilson handled
the heroin while Smith-Kilpatrick handled the cocaine but dismissed this as “just talk.” And the
court emphasized that Smith-Kilpatrick was being held responsible for a “conservative” estimate
of the drug quantities involved.
The district court’s finding was not clear error. To begin, a coconspirator’s testimony
“may be sufficient to determine the amount of drugs for which another coconspirator should be
held accountable.” United States v. White, 563 F.3d 184, 196 (6th Cir. 2009). This is so even if
a different trier of fact might not have found the witness credible. See United States v. Darwich,
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337 F.3d 645, 663 (6th Cir. 2003) (“If the district court interprets the evidence in a manner
consistent with the record, we are required to uphold its decision even if we would have reached
the opposite conclusion.”). And the district court could reasonably believe some of a witness’s
statements while disbelieving or discounting others. The sentencing judge personally observed
the witnesses at trial. He could reasonably find their statements about the transactions believable
while concluding that the testimony about who handled what substance was “just talk.”
Whether believed or disbelieved, witness testimony sufficiently supported the decision to
attribute the heroin to Smith-Kilpatrick. It is undisputed that Smith-Kilpatrick was romantically
involved with Wilson, the head of the conspiracy, and that the heroin was packaged in their
shared home. Even if the two of them generally focused on different drugs, multiple witnesses
testified to Smith-Kilpatrick’s direct involvement with the heroin side of the business.
According to Isaac Cooley, Smith-Kilpatrick did not charge him transportation fees for the
heroin he received because he agreed to turn over all his crack-cocaine proceeds to her. Cooley
also recalled Smith-Kilpatrick’s presence at a heroin sale and testified that Smith-Kilpatrick
personally transported heroin within her body at least once. Alisha St. Vincent recalled Smith-
Kilpatrick handing her heroin for transportation and Brandy Rupright remembered preparing
drugs at Smith-Kilpatrick’s home prior to transporting them. According to Rupright, she and
Smith-Kilpatrick packaged the cocaine while Wilson packaged the heroin—but they did it
together. And even so, the drugs would sometimes be placed in a single condom for
transportation. In the face of this and other testimony, Smith-Kilpatrick faces an uphill climb in
claiming, as she does in her brief, that she “could not have foreseen the extent of Mr. Wilson’s
dealings[.]”
Admittedly, a different sentencing judge could have reasonably held Smith-Kilpatrick
responsible for a lesser amount of the heroin—perhaps even none at all. But our review is for
clear error, so we may disturb the sentence only if we are “left with the definite and firm
conviction that a mistake has been committed.” Darwich, 337 F.3d at 663. We find no such
mistake and thus conclude that it was not clear error for the district court to hold Smith-
Kilpatrick responsible for the entire amount of heroin.
No. 18-1671 United States v. Smith-Kilpatrick Page 16
2. Substantively Unreasonable
The presentence report’s calculations resulted in a Guidelines range of 188–235 months
of imprisonment. But the report suggested a lower sentence of 120 months, citing the statutory
requirement that a sentence be “sufficient but not greater than necessary.” 18 U.S.C. § 3553(a).
At sentencing, the district court chose not to adopt all of the report’s suggestions and thus Smith-
Kilpatrick faced a lower Guidelines range of 121–151 months of imprisonment. That range
placed Smith-Kilpatrick on par with the already-sentenced Wilson, whom the court considered
more culpable overall. So the court varied downward by about twenty percent of the low-end of
the range and sentenced her to 96 months of imprisonment.
On appeal, Smith-Kilpatrick argues that the variance should have plunged further
downward. She claims that the Guidelines—and by extension, her below-Guidelines sentence—
are simply unjust in this case, given her role in the conspiracy and public sentiment about
lengthy sentences. Even if we were to agree with these claims, they would not render her
sentence substantively unreasonable.
Our review is limited. We look only for abuse of discretion and we presume a below-
Guidelines sentence is reasonable. Gall, 552 U.S. at 51; Pirosko, 787 F.3d at 374. We take this
deferential approach because the “sentencing judge is in a superior position to find facts and
judge their import under § 3553(a) in the individual case.” Gall, 552 U.S. at 51.
The judge sees and hears the evidence, makes credibility determinations, has full
knowledge of the facts and gains insights not conveyed by the record. The
sentencing judge has access to, and greater familiarity with, the individual case
and the individual defendant before him than the [Sentencing] Commission or the
appeals court. Moreover, district courts have an institutional advantage over
appellate courts in making these sorts of determinations, especially as they see so
many more Guidelines cases than appellate courts do.
Id. at 51–52 (internal citations and quotation marks omitted, alterations adopted).
Smith-Kilpatrick does not contend that the district court failed to consider the factors
prescribed by § 3553. And the district court explicitly considered what Smith-Kilpatrick
principally presses on appeal: her comparative role in the conspiracy. That was the very reason
she received a downward variance. Once again, a different judge might have reasonably varied
No. 18-1671 United States v. Smith-Kilpatrick Page 17
further downward, or not at all. But the judge in this case chose to vary downward by about
twenty percent. He did not abuse his discretion by going no further.
***
The judgment of the district court is AFFIRMED.