The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0129p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-3287
v. │
│
│
WILLIE R. BENTON, JR., │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 5:18-cr-00406-1—John R. Adams, District Judge.
Decided and Filed: April 30, 2020
Before: MOORE, McKEAGUE, and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Robert A. Dixon, Cleveland, Ohio, for Appellant. Bryson N. Gillard, UNITED
STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Willie Benton was arrested after purchasing four
kilograms of powder cocaine during a transaction in his home. Benton later pleaded guilty to
conspiring to possess with the intent to distribute and conspiring to distribute cocaine, a plea he
does not contest. But he does contest his sentence for that offense. Benton asserts that the
district court improperly calculated his Federal Sentencing Guidelines range by adding as
“relevant conduct” to his underlying offense three kilograms of crack cocaine found in a safe in
No. 19-3287 United States v. Benton Page 2
his home. See U.S.S.G. § 1B1.3(a)(2). Benton likewise challenges the district court’s
imposition of a 260-month sentence as procedurally and substantively unreasonable. Seeing no
error in the proceedings below, we AFFIRM the judgment of the district court.
I. BACKGROUND
After a month of planning, Willie Benton and Armando Merida met at Benton’s Akron-
area home to complete a drug transaction. Unfortunately for the two, they were not alone in that
respect. The DEA had been surveilling their actions.
The transaction itself was brief. Upon parking in Benton’s driveway, Merida went inside
Benton’s home carrying about four kilograms of powder cocaine. Moments later, Merida exited
the home and drove away. Having observed the circumstances surrounding the transaction, DEA
agents stopped and searched Merida’s car. At the same time, they executed a search warrant on
Benton’s home. In Merida’s car, agents found $94,190. In Benton’s home, they found the just-
delivered four kilograms of powder cocaine. They also found approximately three kilograms of
crack cocaine in a safe in an upstairs bedroom, and a handgun lying nearby.
Benton was charged with conspiring to possess with the intent to distribute and
conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), & 846
(Count 1); and with possessing cocaine with the intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) & (b)(1)(A) (Count 2). By agreement with the government, Benton pleaded guilty
to Count 1 in exchange for the dismissal of Count 2.
The parties then turned their attention to sentencing. The Presentence Report (or “PSR”)
calculated Benton’s total offense level as 33. Critical to that conclusion was the underlying drug
quantity calculation. The PSR added to the four kilograms of powder cocaine delivered by
Merida the three kilograms of crack cocaine found in Benton’s safe, which the PSR deemed to
be “relevant conduct” under U.S.S.G. § 1B1.3(a)(2). The PSR next assessed Benton a criminal
history category of VI in view of his 30 criminal convictions, which included prior offenses for
cocaine possession and trafficking. Taking all of this together, the PSR calculated Benton’s
Guidelines range as 235 to 293 months.
No. 19-3287 United States v. Benton Page 3
Benton raised a number of objections to that calculation. Relevant here are his objections
that: (1) his possession of the three kilograms of crack cocaine found in the safe upstairs should
not have been considered “relevant conduct” under U.S.S.G. § 1B1.3(a)(2); (2) the district court
should have granted him a downward departure because his criminal history category
overrepresented the seriousness of his past crimes; and (3) he should not have received a
considerably higher sentence than his co-defendant, Merida, who received 84 months of
incarceration. The government, for its part, agreed with the findings of the PSR.
At Benton’s sentencing hearing, the district court heard testimony from Keith Taggart, a
forensic chemist employed by the Ohio Bureau of Criminal Identification. Taggart testified that
all of the contraband seized by the police—both the four kilograms delivered by Merida and the
three kilograms in the upstairs safe—contained detectable amounts of cocaine or cocaine base.
The government also called Michael Gilbride, an Akron police officer detailed to the DEA’s
Cleveland field office at the time of Benton’s arrest, who participated in the investigation of
Benton. Gilbride testified that the crack cocaine recovered from the upstairs bedroom was
highly adulterated. Nevertheless, Gilbride added that Benton was likely selling it, perhaps with
little success, and that the three kilograms discovered in the safe were what remained from an
earlier five-kilogram purchase made by Benton. For corroboration, Gilbride referenced a call to
Benton surveilled by DEA wiretap. During the call, a woman in Cleveland complained to
Benton about the poor quality of the cocaine Benton had sold her. Gilbride also confirmed that a
firearm was recovered next to the safe in the upstairs bedroom.
At the close of testimony, the district court turned to Benton’s objections to the PSR.
Chief among them was Benton’s objection to the computation of the drug quantity. Benton
argued that the crack cocaine stored in the upstairs safe was “unsellable” “junk,” meaning that he
could not have possessed the crack cocaine with intent to distribute it. The government
countered with evidence it had obtained through a wiretap which demonstrated that Benton had
successfully sold roughly two kilograms of the so-called “junk” crack cocaine in the past. The
district court sided with the government, finding that the crack cocaine was “[c]learly part of the
course of conduct of the defendant.” In so doing, the court observed that a “drug trafficker
[who] does a poor job of cooking his crack and/or mixing his drugs” is not shielded from having
No. 19-3287 United States v. Benton Page 4
those drugs deemed “relevant for purposes of sentencing.” The district court also rejected
Benton’s assertion that trafficking in one substance (here crack cocaine) is not relevant conduct
in a prosecution for trafficking in another (powder cocaine).
Benton fared no better in his request for a downward departure based upon his criminal
history assessment. Benton’s criminal history included past cocaine possession and trafficking
convictions, weapons convictions, numerous community control and probation violations, and a
bevy of convictions for operating a vehicle under the influence and driving with a
suspended license. Benton argued that this admittedly lengthy criminal history was nonetheless
unworthy of category VI because seven of his twelve total criminal history points were
assessed to misdemeanor—not felony—offenses. The government countered that category
VI underrepresented Benton’s criminal history, noting that Benton had several times been
assessed no criminal history points for felony offenses, including his prior cocaine possession,
cocaine trafficking, and weapons convictions. Citing this “extraordinary record of misdemeanor
offenses, let alone felony convictions,” the district court denied Benton a downward departure.
The district court also denied Benton’s request for a sentence similar to the 84-month
prison term imposed on Merida. Critical to the district court’s conclusion were the stark
differences between the two defendants, including Merida’s very limited criminal record.
Adopting the PSR’s proposed Guidelines range of 235 to 293 months and following an analysis
under 18 U.S.C. § 3553(a), the district court sentenced Benton to 260 months in prison.
On appeal, Benton argues that the sentence imposed by the district court is both
procedurally and substantively unreasonable. We take up those arguments now.
II. ANALYSIS
A. Benton’s Sentence Was Procedurally Reasonable.
1. The Three Kilograms Of Crack Cocaine Were Properly Counted As Relevant
Conduct.
The heart of Benton’s appeal is that his possession of three kilograms of crack cocaine
was not “relevant conduct” for purposes of the Guidelines. U.S.S.G. § 1B1.3(a)(2). In a
No. 19-3287 United States v. Benton Page 5
nutshell, relevant conduct is criminal conduct not necessarily covered by the present indictment
or plea that the Guidelines say may nevertheless be considered in computing the defendant’s
Guidelines offense level. United States v. Gill, 348 F.3d 147, 151 (6th Cir. 2003). In that it
relates to the calculation of the proper Guidelines range, Benton’s “relevant conduct” argument
sounds in procedural reasonableness. To render a procedurally reasonable sentence, a district
court must properly calculate that range, consider the § 3553(a) factors, rely on facts that are not
clearly erroneous, and explain the sentence it ultimately selects. United States v. Bradley,
897 F.3d 779, 784 (6th Cir. 2018) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
In reviewing sentencing proceedings, we examine the district court’s factual findings for clear
error, its application of the Guidelines to those facts de novo, and its ultimate sentencing
determination for abuse of discretion. United States v. Susany, 893 F.3d 364, 366–67 (6th Cir.
2018).
A defendant’s uncharged trafficking offense for one controlled substance can constitute
relevant conduct when the defendant is sentenced for trafficking in another. Gill, 348 F.3d at
151 (“[T]ypes and quantities of drugs not specified in the count of conviction may be considered
in determining the offense level. See [U.S.S.G.] § 1B1.3(a)(2) (Relevant Conduct).” (quoting
U.S.S.G. § 2D1.1, application note 12 (application note 5 to the same section in the current
Guidelines))). For Benton, then, his uncharged instance of possession with intent to distribute
crack cocaine constitutes “relevant conduct” if it is “part of the same course of conduct or
common scheme or plan” as Benton’s cocaine trafficking offense. U.S.S.G. §§ 1B1.3(a)(2)
& 3D1.2. In accordance with § 1B1.3(a)(2)’s plain language and its application notes, we have
previously read that section as articulating two alternative grounds upon which an offense can
qualify as “relevant conduct.” The first is where the offenses are “part of a common scheme or
plan,” which requires a finding that the offenses are “substantially connected to each other by at
least one common factor, such as common victims, common accomplices, common purpose, or
similar modus operandi.” United States v. Phillips, 516 F.3d 479, 483 (6th Cir. 2008) (quoting
U.S.S.G. § 1B1.3, application note 9(A)). The second is where the offenses are “part of the same
course of conduct” because they are “sufficiently connected or related to each other as to warrant
the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” Id.
(quoting U.S.S.G. § 1B1.3, application note 9(B)).
No. 19-3287 United States v. Benton Page 6
Benton challenges neither this legal standard nor the fact that he possessed three
kilograms of crack cocaine. He instead makes a more nuanced argument tailored to the facts.
Benton claims that he could not have intended to distribute the crack cocaine because it was
unsellable “junk.” For that reason, Benton says, his possession of the crack cocaine was not part
of the same scheme or course of conduct as his possession of the more marketable powder
cocaine.
Benton’s framing of the issue, however, erroneously focuses on what might (or might
not) have occurred as a result of his conduct, rather than his intent underlying that conduct. That
is clear from the offense’s elements. “[T]he elements of possession with intent to distribute”
include “(1) knowingly or intentionally, (2) possessing, (3) with the intent to distribute, (4) a
controlled substance.” United States v. Buchanan, 933 F.3d 501, 510 (6th Cir. 2019) (emphasis
added) (citation and internal quotation marks omitted). For the “intent to distribute” element,
distribution is defined broadly to include, among other things, sales. United States v. Moore,
423 F. App’x 495, 500 n.2 (6th Cir. 2011) (citing United States v. Jackson, 55 F.3d 1219, 1226
(6th Cir. 1995)). With these concepts in mind, the question is thus not whether Benton could sell
the crack cocaine at the time it was seized, but whether he intended to sell (and thereby
distribute) that crack cocaine. Whether a sale could actually come to fruition turns on a variety
of factors, including price, quantity, quality, and opportunity. See Food Lion, LLC v. Dean
Foods Co. (In re Se. Milk Antitr. Litig.), 739 F.3d 262, 279 (6th Cir. 2014) (discussing the effect
of price, supply, and demand on market behaviors). But whether Benton intended to sell the
crack cocaine turns only on Benton’s mental state. See United States v. Price, 134 F.3d 340, 351
(6th Cir. 1998) (explaining that a conviction for possession with intent to distribute a controlled
substance requires a showing of subjective intent to distribute narcotics). In other words, even if
Benton could not sell the crack cocaine on the terms he had hoped due to its low quality, that
does not preclude a finding that he intended to do so, and thus intended to distribute a controlled
substance. United States v. Woods, 61 F.3d 904, 1995 WL 428334, at *3 (6th Cir. 1995) (table
decision) (holding that the district court did not clearly err in finding the defendant intended to
sell marijuana despite the defendant’s argument that the marijuana “wasn’t any good” and
“would be almost impossible to sell”).
No. 19-3287 United States v. Benton Page 7
Whether Benton intended to sell the crack cocaine is a factual matter that we review only
for clear error. United States v. Henry, 819 F.3d 856, 864 (6th Cir. 2016). And we see no such
error in the district court’s finding that Benton did intend to do so, particularly in view of the
preponderance-of-the-evidence standard applicable in sentencing proceedings. United States v.
Shannon, 803 F.3d 778, 788 (6th Cir. 2015). Wiretap evidence admitted through witness
testimony revealed that Benton had been trafficking cocaine in the months leading up to his
arrest. Testimony also revealed that Benton had three kilograms of crack cocaine, an amount
inconsistent with personal use. Benton kept that crack cocaine, which he alleged was unsellable,
in a locked safe next to a firearm. Benton admitted at sentencing that he had been dealing in
powder cocaine, and that the crack cocaine remained in his safe for “years” because the person
who sold it to him “was supposed to fix” the crack—apparently so that Benton could later sell it.
This collection of evidence hardly leaves us with a “definite and firm conviction” that the district
court was wrong about Benton’s intentions. Id. at 787 (quoting United States v. White, 492 F.3d
380, 414 (6th Cir. 2007)).
Benton takes issue with some apparent confusion by the district court at sentencing as to
whether the DEA wiretaps provided evidence that Benton was trafficking in powder or crack
cocaine. True, at one point during the hearing, the district court appears to have incorrectly
stated that a transaction captured on the wiretap involved the sale of crack, rather than powder,
cocaine. Though the district court later corrected any misunderstanding, Benton claims that this
sequence of events nevertheless infected the district court’s factual findings because the court
corrected itself only after overruling Benton’s relevant conduct objection. But the district court,
to its credit, took the issue head on. It noted its prior misunderstanding, and then, on the proper
record, simply declined to change its mind that Benton intended to sell the three kilograms of
crack cocaine because his prior transactions involved “cocaine of some form.”
With the benefit of the district court’s factual finding that Benton intended to sell the
crack cocaine, Benton’s possession of that substance easily qualifies as relevant conduct as to his
powder cocaine conviction under either avenue set forth in U.S.S.G. § 1B1.3’s application notes.
Start with the requirement that the offenses be “part of a common scheme or plan.” Here, the
two offenses were “substantially connected to each other by at least one common factor, such as
No. 19-3287 United States v. Benton Page 8
common victims, common accomplices, common purpose, or similar modus operandi.” Phillips,
516 F.3d at 483 (quoting U.S.S.G. § 1B1.3, application note 9(A)). While Benton may have
bought the crack and powder cocaine from different suppliers and sold the two drugs to a
different clientele, Benton’s purpose for committing the two offenses and his modus operandi in
doing so were identical. Benton sold drugs for a living. He bought, stored, and sold those drugs
while operating out of the same home. And he guarded the drugs with the same safe and gun.
For the same reasons, Benton’s possession of the crack and powder cocaine are also “part of the
same course of conduct” because they are “sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single episode, spree, or ongoing series of
offenses.” Id. (quoting U.S.S.G. § 1B1.3, application note 9(B)). Benton’s simultaneous
possession and sale of crack and powder cocaine over several years is a paradigmatic example of
ongoing criminal conduct.
For purposes of the Guidelines, conduct is not unrelated, moreover, simply because it
involves trafficking in a different substance, or because the purportedly related activity occurs at
different times. In Phillips, we found that the defendant’s three instances of possession of a
firearm years apart were relevant conduct under § 1B1.3. Id. at 484. In so finding, we
distinguished our prior holding in United States v. Hill that, “[g]enerally, where two isolated
drug transactions are separated by more than one year, a ‘relevant conduct’ finding may not be
premised on the sole similarity that both transactions involved the same type of drug.” 79 F.3d
1477, 1484 (6th Cir. 1996). We did so by emphasizing the consistency and similarity between
Phillips’s three offenses, as opposed to the lack of consistency and similarity in Hill’s two.
Phillips, 516 F.3d at 484–85. In that sense, Benton’s conduct is more akin to that in Phillips—
Benton’s possession of crack and powder cocaine were simultaneous, not years apart, and
Benton trafficked both substances out of the same home, for the same purpose, and with the
same tools of the trade. To conclude otherwise would make it exceedingly difficult ever to
consider a defendant’s uncharged trafficking in a controlled substance in computing his offense
level for trafficking in another, a result that is plainly inconsistent with the Guidelines. See Gill,
348 F.3d at 151. We thus see no error in the district court’s determination as to relevant conduct.
No. 19-3287 United States v. Benton Page 9
2. Benton’s Sentence Was Otherwise Procedurally Reasonable.
Benton also takes issue with the district court’s perceived overemphasis of the Guidelines
range in setting his sentence. To Benton’s eye, his sentencing hearing “had the look and feel of a
sentencing proceeding held before the landscape of sentencing was modified post-Booker,”
which made the Guidelines range advisory. United States v. Booker, 543 U.S. 220 (2005).
Benton principally faults the district court for overemphasizing his criminal history, which the
PSR placed in the maximum category of VI. But the record belies his claim. The district court
discussed in detail Benton’s crime, history, and characteristics as well as the need to deter
Benton from future crime, the need to protect the public, and the possibility that a lengthy
sentence might rehabilitate him. Those items were particularly relevant in answering Benton’s
objection that Merida received a much lower sentence. In so doing, the district court emphasized
the key differences between the two men, including their respective crimes and criminal
histories. Further, before passing sentence, the district court referred to the Guidelines as
advisory several times. And having done all that, the district court was “tempted to,” but
ultimately did not, “impose a sentence outside of the [G]uidelines” range based on the
information presented.
There was good reason for the district court repeatedly to discuss Benton’s criminal
history in passing sentence. The court rightly noted that Benton’s record reflected a life-long
disregard for the law, a pattern of conduct enabled by the repeated “slap[s] on the wrist” Benton
received for serious conduct. And Benton failed to abide by even those minor punishments,
repeatedly violating his probation and community control and driving on a suspended license
after his numerous OVI convictions. At one point, the district court even fairly wondered
whether Benton “[would] ever find his way to comply with even the basic laws of the state, laws
of the country.” The district court’s discussion of Benton’s criminal history touched on each of
the § 3553(a) factors. That Benton’s criminal history was his most prominent characteristic at
sentencing is merely a reflection of his recidivist conduct. His sentence was procedurally
reasonable. See United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018).
No. 19-3287 United States v. Benton Page 10
B. Benton’s Sentence Was Substantively Reasonable.
Benton also argues that his 260-month sentence was substantively unreasonable. Unlike
challenges predicated on procedural grounds, where our focus is on the manner in which a
sentence was calculated, substantive challenges focus on the length of the sentence itself. United
States v. Clayton, 937 F.3d 630, 642–44 (6th Cir. 2019). And thus unlike reviewing a
mechanical calculation of the Guidelines range, we instead have before us more intangible
considerations. For passing sentence is more art than science, and one that reasonable jurists
undertake in diverse ways. Rayyan, 885 F.3d at 442. We accordingly afford significant
deference to a district court’s balancing of the § 3553(a) factors—particularly where, as here, the
sentence falls within the Guidelines range. United States v. Faulkner, 926 F.3d 266, 273 (6th
Cir. 2019); United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).
No abuse of discretion occurred. As the evidence presented at sentencing reflected,
Benton is a career criminal who regrettably broke the law as a matter of course. Whether it was
possessing, abusing, or trafficking drugs, carrying weapons while on probation, driving under the
influence, or domestic violence, crime was Benton’s lifestyle. Add to that Benton’s present
offenses. Benton possessed with intent to distribute four kilograms of powder cocaine with an
additional three kilograms of crack cocaine and a firearm upstairs, despite his well-established
status as a felon. Those offenses, serious in their own right, were nonetheless just part of an
ongoing criminal enterprise that filled Benton’s pockets while harming his community. And
despite that history of misconduct, in many respects, Benton, as the prosecutor described things,
had never received more than “a slap on the wrist.” We thus see no abuse of discretion in the
260-month sentence imposed by the district court.
III. CONCLUSION
For these reasons, we AFFIRM the judgment of the district court.