United States v. Keli Dunnican

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0181p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 19-3092

v. │

│

│

KELI DUNNICAN, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:18-cr-00144-1—John R. Adams, District Judge.

Decided and Filed: June 9, 2020

Before: SUTTON, BUSH, and READLER, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Kevin M. Cafferkey, Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED

STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. Keli Dunnican, Bruceton

Mills, West Virginia, pro se.

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. Keli Dunnican appeals a judgment of conviction for the

charges of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count I);

possessing marijuana with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(D) (Count II); and carrying a firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (Count III). Dunnican argues that the district court plainly erred

No. 19-3092 United States v. Dunnican Page 2

in allowing the government to introduce under Federal Rule of Evidence 902(14) certain data

extracted from his cellular telephone. He also contends that the district court abused its

discretion in allowing the government to introduce under Federal Rule of Evidence 404(b)

certain text messages from his cellular telephone, allowing Drug Enforcement Administration

(DEA) Special Agent Shaun Moses to offer expert opinion testimony that the marijuana found in

Dunnican’s car appeared to be packaged for distribution, denying Dunnican’s motion for

judgment of acquittal, denying his motion for a new trial following the dismissal of a jury

member, and imposing a 21-month upward variance on Dunnican’s sentence.

Because we find no error in the district court’s rejection of Dunnican’s Rule 902(14)

argument, and we determine that the district court did not abuse its discretion in its rulings

related to his other arguments, we AFFIRM the district court’s judgment in full.

I.

A. The Trial Evidence

Dunnican’s conviction arose from a search of his car conducted by Ohio Adult Parole

Authority (APA) officers while he was on parole. One condition of Dunnican’s parole was that

he consent to regular warrantless searches by APA officers. The search at issue was conducted

at Dunnican’s residence in East Cleveland, Ohio by APA Officers Miranda Polito and Jennifer

Williamson.

Polito and Williamson arrived at Dunnican’s residence shortly after noon on November

5, 2017 and observed that Dunnican’s car was not in the driveway. Polito called Dunnican to

ask where he was. Dunnican responded that he was on his way home and would be there soon.

When he arrived, Dunnican parked his white Nissan sedan on the street, around 20-to-25 feet

behind the officers’ car. Dunnican then exited his car and walked towards his residence.

Polito found it suspicious that Dunnican had parked his car so far away from his

residence, given that the driveway was open and accessible. Polito and Williamson also

observed that Dunnican smelled like marijuana and alcohol, his eyes were glazed, and he seemed

anxious or “fidgety.” After some questioning by Polito, Dunnican admitted that he had

No. 19-3092 United States v. Dunnican Page 3

marijuana in his vehicle. Consequently, the officers placed Dunnican in custody, where they

conducted a pat-down search and seized his car keys.

Polito and Williamson then searched Dunnican’s car and discovered a small bag of

marijuana, an electronic scale with residue, and two cellular telephones. In the car’s trunk were

two grocery bags. The first contained several individually-packaged Ziploc bags of marijuana,

as well as bundles of U.S. currency wrapped in rubber bands; the second grocery bag contained a

loaded firearm. When the officers asked Dunnican about the items seized, he responded that the

car was not his. However, records from the Bureau of Motor Vehicles revealed that Dunnican

was the lessee of the vehicle.

Upon taking custody of the evidence from the search, East Cleveland Police confirmed

that the discovered firearm was loaded with fifteen rounds of ammunition. Additionally, after

receiving consent from Dunnican’s father, “Kelly” Dunnican, to search the residence, officers

located a jar with more suspected marijuana in Dunnican’s bedroom.

Dunnican was arrested and transported to Cuyahoga County Jail. During booking,

officers discovered that he had $300 cash in his wallet.

Eric French, an Ohio Department of Rehabilitation and Corrections Officer, was assigned

as the lead investigator in Dunnican’s case. French was a member of the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) Gun Violence Task Force. He testified that the

packages found in the trunk of Dunnican’s car contained marijuana and weighed approximately

one pound in total. French further testified that upon test-fire testing, the seized firearm was

confirmed to be operational.1 Also, and most significantly, French introduced recordings of four

post-arrest telephone calls made by Dunnican:

(1) Dunnican’s first call was with his father, Kelly Dunnican, who told his son

during this call that officers had located “homegrown” in the son’s bedroom.

(R.77: Notice, GX16, at 1:50). To this, Keli Dunnican responded: “they got

the other stuff anyways, so . . . that ain’t gonna hurt nothing.” (GX16, at

2:03).

1

Investigators determined that the firearm had originally been sold by a dealer in Connecticut. Before trial,

Dunnican stipulated (1) that the firearm and ammunition were manufactured outside of Ohio, and (2) that he was

prohibited from possessing them because of a previous felony conviction.

No. 19-3092 United States v. Dunnican Page 4

(2) In a second call, Dunnican told his father that although he was unconcerned about

the officers locating marijuana, as it would only result in a misdemeanor charge,

he worried that “the gun is a problem.” (R.77: Notice, GX17, at 0:15). Dunnican

also indicated that he had “the craziest luck in the world.” (Id., at 0.45).

Relatedly, he surmised to his father that an individual named “Anthony” had been

funneling information about him to law enforcement. (Id.). Responding to this,

Kelly Dunnican questioned why his son had failed to “take care of business” prior

to returning home. (Id., at 2:00). Keli Dunnican explained that he did not have

time, and that although he had attempted to return to the house via “the back

way,” the patrol officers had seen him. (Id.). Once spotted, according to

Dunnican, he had tried to reach his father on the telephone to see if he could meet

him to take the car Dunnican drove. Later in this same conversation, an

unidentified individual joined the call, at which point Dunnican admitted to this

individual and his father that the car was his. Dunnican then complained that the

officers would search his phones.

(3) Dunnican’s third call was with an unidentified individual. Dunnican stated that

he did not believe he could be charged with carrying a concealed weapon, given

that the firearm was found in the car’s trunk, and not within his immediate

possession. At this point, another unidentified individual joined the call.

Responding directly to Dunnican’s last statement, the individual remarked,

“I wish you would’ve just gave me that s**t,” to which Dunnican responded, “It

was in the trunk.” (R.77: Notice, GX18, at 4:05). Dunnican then declared that he

“was about to go right to the house and put that s**t in there,” but did not have

enough time. (Id. at 4:15).

(4) In Dunnican’s final phone call, an unidentified woman asked him why he had not

given her “the s**t” to take home. (R.77: Notice, GX19, at 2:30). Dunnican

responded that he did not expect the officers to search his car.

Dunnican also had text-message conversations, which French summarized in exhibits

introduced into evidence. French testified that the text-message conversations were obtained

through a multi-step extraction process, which involved French’s receiving two of Dunnican’s

phones from the East Cleveland Police, obtaining a search warrant for their search, and then

attempting to access the phone data. This latter step involved the assistance of a mobile-

extraction technician, who tried to download the data from one phone into a comprehensive

report. However, the security features of the second phone impeded the data’s accessibility.

Prior to trial, the government filed notice that it intended to authenticate the evidence

extracted from the first cellular telephone under Federal Rule of Evidence 902(14). Included in

No. 19-3092 United States v. Dunnican Page 5

the notice was a certification provided by ATF Special Agent Joshua Snyder, who possessed

training and experience in mobile-device data extraction. Based on his background, Snyder

certified the following: (1) that he extracted data from Dunnican’s cellular telephone on March

25, 2018 through the use of specialized forensic software, which created an accurate and reliable

duplication of the data; and (2) that the forensic software generated a “digital fingerprint”

(otherwise known as a “hash”), which indicated that the extraction was successful, complete, and

accurate. (R. 25-1: Certificate of Authenticity, PageID 76–77).

Notably, during the final pretrial hearings, Dunnican objected to neither the government’s

notice nor the proposed authentication method. Also, at trial, he did not raise an authenticity

challenge to the data, arguing instead that the text-message summaries constituted hearsay. The

government countered that the exhibits were admissible summaries of conversations between

Dunnican and unidentified individuals that had been extracted from the forensic examiner’s

11,038 page long report. Thereafter, the court overruled Dunnican’s objection, thus allowing

French to introduce the text-message summaries.2

French began by presenting two text-message summaries to establish Dunnican’s

ownership of the telephone at issue. The first, “Exhibit 22,” revealed a text-message exchange

between Dunnican and Polito on June 28, 2017. In that exchange, the two coordinated Polito’s

home inspection of Dunnican’s residence. The second text-message exchange was between

Dunnican and a contact named “LaRae Davis.” In this exchange, Dunnican sent a photo of his

white Nissan sedan, accompanied by a message stating: “A ‘15 Altima, thanks Lil Sis!” (R. 69:

French Trans., PageID 726–27; R. 77: Notice, GX 35, PageID 1070).

The government then requested permission from the court to introduce additional text

messages between Dunnican and others under Federal Rule of Evidence 404(b) in order to

demonstrate Dunnican’s intent to distribute.3 Because the court determined there was sufficient

evidence showing that Dunnican had sent the messages, it allowed introduction of additional text

2

Until this appeal, Dunnican never challenged the authenticity of the data extracted from the first cellular

phone.

3

Prior to trial, the government offered notice to Dunnican of its plan to introduce relevant text messages to

demonstrate Dunnican’s intent to distribute marijuana, a required element under 21 U.S.C. § 841(a)(1).

No. 19-3092 United States v. Dunnican Page 6

messages for the government’s stated purpose of showing Dunnican’s intent. However, at the

time, the court refrained from weighing the probative value of the text messages against their

prejudicial value under Rule 404(b).

The government’s final witness was DEA Special Agent Shaun Moses, a thirteen-year

narcotics investigator with extensive experience in Cleveland-area drug trafficking

investigations.4 The district court determined that Moses was a qualified witness regarding

street-level drug trafficking, and therefore, qualified to provide opinion testimony regarding the

facts at hand. Moses testified as to these matters:

(1) Drug Packaging: According to Moses, marijuana is typically sold in pounds, half-

pounds, quarter-pounds, or ounces, and the street price varies based on quality.

The bags of marijuana seized from Dunnican’s trunk appeared to be quarter-

pound bags, which sell, on average, for $200-to-$300 each. Furthermore, the way

in which the bags were packed—in multiple Ziploc bags of approximately the

same size, weight, and packing—was consistent with drugs packaged for

distribution.

(2) Drug Paraphernalia: Moses observed that it is common for drug traffickers to fold

their cash into bundles secured by rubber bands, as Dunnican had done, (id.,

PageID 792), and it is “incredibly common” for drug traffickers to have electronic

scales to weigh products for customers. (R.69: Moses Trans., PageID 792–93).

(3) Firearms: Moses testified that drug traffickers frequently use and keep firearms,

generally with the objective of “protect[ing] themselves while conducting their

drug sales.” (Id., PageID 793). Relatedly, handguns are considered more

portable and concealable than other types of firearms, such as shotguns or rifles.

(4) Drug Slang: Moses noted that the terms used in Dunnican’s text messages were

consistent with language frequently used by dealers regarding different “grades,”

prices, and quantities of marijuana, as well as terms used generally to coordinate

meeting spots to sell marijuana to customers. (Id., PageID 795–802).5

4

The government gave pre-trial notice to Dunnican that Moses would offer opinion testimony and a

summary about the marijuana found in Dunnican’s vehicle.

5

Prior to allowing Moses’s testimony regarding the specialized drug language used in Dunnican’s text

messages, the district court provided the jury with the following limiting instruction:

With regard to the text messages, I’m allowing you to see them. You can consider them only as it

relates to the government’s claim on the defendant’s intent.

One of the issues in the case is whether the defendant intended to distribute the drugs in question.

I’m allowing you to see the text messages for that purpose and that purpose only.

(R. 69: Moses Trans., PageID 794).

No. 19-3092 United States v. Dunnican Page 7

(5) Overall assessment: Moses cited the police reports, photographs, lab reports, and

text messages relating to Dunnican’s activity as suggesting that the marijuana was

packaged for resale.

Based on the testimony of Moses and French, the district court concluded that the text

messages were admissible under Rule 404(b), given that (1) the government presented sufficient

evidence showing Dunnican had sent the text messages; (2) the government had shown the

relevancy of the text messages in establishing Dunnican’s intent to distribute; and (3) the

probative value of the messages outweighed their prejudicial value.

At the close of the government’s case, Dunnican moved for a judgment of acquittal on all

counts, which the district court overruled.6 Dunnican then presented his defense, calling only

one witness, his father. Kelly Dunnican claimed that the firearm found in his son’s car belonged

to Kelly’s deceased ex-wife. He also stated that he had placed the weapon in his son’s trunk

upon learning that a probation officer would be inspecting the residence. However, during cross-

examination, Kelly Dunnican denied (1) that any probation officer had ever inspected his house

before his son’s release, and (2) that any probation officer had ever inquired whether there were

firearms in his household. At the conclusion of his defense, Keli Dunnican did not renew his

Rule 29 motion for judgment of acquittal.

In rebuttal, the government called Polito, Dunnican’s probation officer. Contrary to

Kelly Dunnican’s claims, Polito stated that she had inspected the Dunnican residence, during

which she inquired if there were any firearms in the home and was told by Keli Dunnican, Kelly

Dunnican, and Kelly Dunnican’s wife that there were none. Following the government’s

rebuttal, Keli Dunnican did not renew his Rule 29 motion for judgment of acquittal.

6

At the conclusion of the government’s presentation of its case, Dunnican objected to the admissibility of

the text messages; however, he failed to challenge the authenticity of the messages, and he did not object to any

other exhibits the government offered into evidence. As such, the district court overruled Dunnican’s admissibility

challenge.

No. 19-3092 United States v. Dunnican Page 8

B. Juror 12

Shortly after jury deliberations commenced, the district court was informed that Juror 12,

the only African American juror, was being disruptive during the discussions. Upon hearing

these complaints, the court immediately instructed the jury of its duty to deliberate.

Unfortunately, however, difficulties in jury deliberations continued. Forty–five minutes

later, Juror 7 contacted the court “distraught” and “in tears.” (R. 70: Trial Trans., PageID 955).

After bringing the issue to the attention of the parties, the court decided to question each jury

member individually. During this questioning the Foreperson claimed that instead of

deliberating, Juror 12 was lamenting to her colleagues about “her neighborhoods, her plight as a

black woman, [and] the shootings in her neighborhood.” (Id., PageID 960, 966–67). According

to Juror 7, no amount of coaxing could convince Juror 12 to re-focus on the facts of the case—

even following the court’s reminder to the jury of their duty to deliberate. After the court sent

Juror 7 back to the jury room, it was reported that Juror 12 had just requested to be excused.

Thereafter, the court questioned Juror 12, who declared that although she had been

deliberating, her colleagues had not done so. Juror 12 also informed the court that she was

experiencing increased symptoms from her Crohn’s disease, which she indicated was the result

of racial tensions that had arisen during deliberations. (Id.) At this time, the court excused Juror

12 for medical reasons for the remainder of the day.

Following the questioning of Juror 12, the court advised the parties that it intended to

continue its individual questioning of the jurors. However, Dunnican objected, asking the court

to refrain from questioning any more jurors, given that Juror 12’s illness could result in her

permanent removal from the jury. The court agreed to end the questioning, and then excused the

remaining jurors for the day.

Juror 12 failed to return the following day, and her mother contacted the court to request

her daughter’s release from continued jury duty, given that she reportedly had been in the

emergency room the previous evening. Defense counsel initially agreed to the court’s release of

Juror 12 and did not make any objection that Juror 12 was the only African-American on the

No. 19-3092 United States v. Dunnican Page 9

panel.7 The court then outlined its alternatives for going forward, which included either

(1) replacing Juror 12 with an alternate; or (2) instructing the jury to continue deliberations with

eleven jurors. At this point, Dunnican objected to Juror 12’s removal. In light of the objection,

the court contacted Juror 12 again, and was informed simply that Juror 12 was unable to come to

court. The court then decided to adjourn deliberations again, leaving open the possibility that

Juror 12 would return the following day.

The next day, the court made multiple unsuccessful attempts to contact Juror 12. The

government then requested that Juror 12 be excused and replaced with an alternate pursuant to

Federal Rule of Criminal Procedure 23(b)(3). Dunnican did not object to this request. His

attorney agreed that the court had “taken reasonable steps under the circumstances,” and that “its

process [had] been well thought out.” Defense counsel also admitted, “I don’t know if there is

any alternative that you can make at this point.” (R. 72: Trial Trans., PageID 1003).

Consequently, with the parties in agreement, the court replaced Juror 12 with an alternate, and

instructed the jury to restart deliberations. Thereafter, the jury found Dunnican guilty of all three

counts in the indictment.

At sentencing, the district court ordered Dunnican to serve an 84-month imprisonment

term on Count 1; a 60-month imprisonment term on Count 2, to be served concurrently; and a

mandatory 60-month imprisonment term on Count 3, to be served consecutively. This sentence

varied upward a total of 21 months from the sentence calculated by the advisory U.S. Sentencing

Guidelines.

II.

Dunnican argues that the district court abused its discretion by admitting into evidence

under Federal Rule of Evidence 902(14) certain data that the government extracted from his

cellular telephone. Specifically, he argues (1) the government inadequately authenticated the

text messages; (2) the text messages constituted hearsay; and (3) the government’s admission of

7

The court did remind the parties that Juror 12 had reported her medical condition during voir dire. Juror

12 also submitted medical records to verify her condition, which are filed under seal in the record.

No. 19-3092 United States v. Dunnican Page 10

a summary of the text messages (as opposed to the forensic examiner’s full report containing all

of Dunnican’s data) was improper.

In most cases, “[a] district court's evidentiary rulings will not be reversed absent a clear

showing of abuse of discretion.” United States v. Damrah, 412 F.3d 618, 625 (6th Cir. 2005)

(citing U.S. v. Hickey, 917 F.2d 901, 904 (6th Cir. 1999)). “Abuses of discretion in evidentiary

rulings . . . merit reversal only if the error is not harmless—‘that is, only if the erroneous

evidentiary ruling affected the outcome of the trial.’” United States v. Farrad, 895 F.3d 859, 875

(6th Cir.) (quoting United States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011)), cert. denied,

139 S. Ct. 651 (2018). Nonetheless, if a party fails to object, “his contention on appeal will

prevail only if the trial court’s evidentiary decision was plainly erroneous, thus affecting his

substantial rights and resulting in a miscarriage of justice.” United States v. Evans, 883 F.2d 496,

499 (6th Cir. 1989).

At trial, Dunnican never objected to the authenticity of the data extracted from his

cellular phones, meaning, he failed to challenge the government’s use of a Rule 902(14)

certification to authenticate the forensic examiner’s report. Consequently, Dunnican’s

authenticity claim on appeal is limited to plain-error review. However, because Dunnican

objected to the extracted cell phone data on hearsay grounds, we review his appeal of this issue

for abuse of discretion. Damrah, 412 F.3d at 628. And finally, because Dunnican did request

that the court admit the forensic examiner’s full, multi-thousand page report regarding his

cellular phone usage, as opposed to simply summaries of such, we review that report’s admission

for abuse of discretion as well.

A. Evidentiary Authenticity Challenge

Federal Rule of Evidence 901 governs the process of evidentiary authentication.

It provides that “[t]o satisfy the requirement of authenticating or identifying an item of evidence,

the proponent must produce evidence sufficient to support a finding that the item is what the

proponent claims it is.” See United States v. Jones, 107 F.3d 1147, 1150 n.1 (6th Cir. 1997)

(quoting Jack B. Weinstein et. al., Weinstein’s Evidence Manual, ¶ 901(a) [01], at 901–19 (5th

ed. 1996)) (“The [authentication] rule requires only that the court admit evidence if sufficient

No. 19-3092 United States v. Dunnican Page 11

proof has been introduced so that a reasonable juror could find in favor of authenticity or

identification. The rest is up to the jury.”)). “This task can be accomplished in a number of

ways—with testimony from someone with knowledge of the evidence offered, for example, or

by pointing to distinctive characteristics that establish authenticity.” Farrad, 895 F.3d at 876;

see Fed. R. Evid. 901(b)(1), (4). “Some items, however, ‘are self-authenticating; they require no

extrinsic evidence of authenticity in order to be admitted.’” Farrad, 895 F.3d at 876 (citing Fed.

R. Evid. 902). One category of self-authenticating evidence is “[d]ata copied from an electronic

device, storage medium, or file, if authenticated by a process of digital identification, as shown

by a certification of a qualified person that complies with the certification requirements of Rule

902(11) or (12).” Fed. R. Evid. 902(14).

As explained by the Advisory Committee in 2017, there are critical convenience and

efficiency objectives linked to the application of Rule 902(14):

[T]he expense and inconvenience of producing an authenticating witness for this

evidence is often unnecessary. It is often the case that a party goes to the expense

of producing an authentication witness, and then the adversary either stipulates

authenticity before the witness is called or fails to challenge the authentication

testimony once it is presented.

Fed. R. Evid. 902, 2017 Advisory Committee notes. The Committee also notes that the

amendment was intended to “provide[] a procedure in which the parties can determine in

advance of trial whether a real challenge to authenticity will be made, and can then plan

accordingly.” Id.

The government adhered to these authentication procedures. In compliance with Rules

902(11) and 902(14), the government filed a notice of its intent to use a certification method on

September 17, 2018. This certification was signed by ATF Special Agent Joshua Snyder, who

performed the digital extraction. Snyder certified the reliability and verifiability of the

extraction, which he explained, involved the use of a digital fingerprint generated by special

software. Dunnican did not object to this method of self-authentication either during the final

pretrial proceedings or at the trial.8 Regardless though, because we determine that the

8

Dunnican actually requested that the district court admit the entire extraction report—a document of

several thousand pages in length—as opposed to summaries of such. The government argues that by virtue of this

No. 19-3092 United States v. Dunnican Page 12

stipulations of Rule 902 have been met and the evidence was properly authenticated, we

conclude that the district court did not commit plain error in admitting it.

B. Hearsay Challenge

Under Federal Rule of Evidence 801(c), “hearsay” is defined as statements that: “(1) the

declarant does not make while testifying at the current trial or hearing; and (2) a party offers in

evidence to prove the truth of the matter asserted in the statement.” This definition leaves open a

fairly wide category of statements that are not hearsay. See Fed. R. Evid. 801(d). Specifically,

801(d)(2)(A) provides that a statement is not hearsay if “[t]he statement is offered against an

opposing party and . . . was made by the party in an individual or representative capacity[.]”

Based on the exclusion of Rule 801(d)(2)(A), Dunnican’s text messages are not hearsay

because they are Dunnican’s own statements, regardless of the electronic medium through which

they were sent. We have suggested as much in United States v. Beckman, 624 F. App’x 909 (6th

Cir. 2015). There, we determined that a defendant’s electronic instant messages were not

hearsay, but rather constituted “admissions” under Rule 801(d)(2)(A). Id. at 913. Relatedly, we

concluded that the district court properly admitted portions of the electronic conversations

connected to unidentified parties who conversed with the defendant in order “to provide context

to [that party’s] own statements. Id.; see also United States v. Henderson, 626 F. 3d 326, 336–37

(6th Cir. 2010) (characterizing statements made by defendant during recorded telephone

conversations as non-hearsay admissions under Rule 801(d)(2)(A) and concluding the admission

of statements made by unidentified participants in the phone call were not to show the truth of

the matter asserted, but to provide context for defendant’s admissions). Similarly here, we

conclude that the district court did not abuse its discretion in admitting Dunnican’s text-message

conversations into evidence.

C. Challenge to Exhibit Summaries

It is often the case that “admission of summaries of voluminous books, records, or

documents offers the only practicable means of making their contents available to judge and

request, Dunnican waived any challenge to the admission of portions of the extraction report. We need not address

that argument, given our primary determination that the evidence was properly authenticated.

No. 19-3092 United States v. Dunnican Page 13

jury.” Fed. R. Evid. 1006, 2011 Advisory Committee notes. Consequently, Federal Rule of

Evidence 1006 offers parties the ability to “use a summary, chart, or calculation to prove the

content of voluminous writings, recordings, or photographs that cannot be conveniently

examined in court.” Fed. R. Evid. 1006. Yet, the rule is not absolute. “The proponent must

make the originals or duplicates [of summary exhibits] available for examination or copying, or

both, by other parties at a reasonable time and place. And the court may order the proponent to

produce them in court.” Id.

The government complied with Rule 1006 when it presented the data extracted from

Dunnican’s cellular phone in summary form. In fact, it appears that Rule 1006 was designed to

govern this exact scenario: where, upon downloading the contents of Dunnican’s cellular

telephone, the forensic examiner possessed over 11,038 pages of potential evidence—a number

so unwieldy and robust that it would take multiple months (possibly, even years) for a court to

examine all of this content. See Fed. R. Evid. 1006. Because these summaries were sufficiently

authenticated by the forensic examiner and the government in a transparent fashion, we conclude

that Dunnican’s rights were safeguarded, as necessitated by Rule 1006. Therefore, the exhibit

summaries were properly admitted.

III.

Next, relying on Federal Rule of Evidence 404(b), Dunnican appeals the district court’s

admission of certain text messages from his cellular telephone, purportedly to show Dunnican’s

intent to distribute the marijuana. Dunnican argues that the government’s “purpose” was merely

pretext. Instead, he contends, the text messages were introduced for the impermissible purpose

of showing his character or propensity to commit other bad acts. Dunnican also insists that the

text messages were not authenticated.

“We review a district court’s ruling on the admissibility of evidence for abuse of

discretion.” United States v. Yu Qin, 688 F.3d 257, 261 (6th Cir. 2012); see also United States v.

Haywood, 280 F.3d 715, 720 (6th Cir. 2002). An abuse of discretion has been committed if we

are “left with the definite and firm conviction that the district court committed a clear error of

judgment in the conclusion it reached upon a weighing of the relevant factors.” Yu Qin, 688 F.3d

No. 19-3092 United States v. Dunnican Page 14

at 261 (quoting United States v. Jenkins, 345 F.3d 928, 936 (6th Cir. 2003)). Nonetheless,

“[a] trial judge is accorded broad discretion in determining the admissibility of bad acts evidence

under Rule 404(b).” Yu Qin, 688 F.3d at 261 (citing United States v. Stout, 509 F.3d 796, 799

(6th Cir. 2007)).

Rule 404(b)(1) states as follows: “Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular occasion the person

acted in accordance with the character . . . .” Fed. R. Evid. 404(b)(1). However, Rule 404(b)(2)

qualifies this provision, allowing the admissibility of evidence “for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

or lack of accident.” Fed. R. Evid. 404(b)(2). There is a three-step process for assessing the

admissibility of proof under Rule 404(b):

First, the district court must decide whether there is sufficient evidence that the

other act in question actually occurred. Second, if so, the district court must

decide whether the evidence of the other act is probative of a material issue other

than character. Third, if the evidence is probative of a material issue other than

character, the district court must decide whether the probative value of the

evidence is substantially outweighed by its potential prejudicial effect.

Yu Qin, 688 F.3d at 262 (quoting Jenkins, 345 F.3d at 937 (6th Cir. 2012)).

We have “repeatedly recognized that prior drug-distribution evidence is admissible

[under Rule 404(b)] to show intent to distribute.” United States v. Ayoub, 498 F.3d 532, 548 (6th

Cir. 2007) (citing Jenkins, 345 F.3d 928, 938 (6th Cir. 2003) (collecting cases)). And, we view

Rule 404(b) as “a rule of inclusion rather than exclusion.” United States v. Blankenship,

775 F.2d 735, 739 (6th Cir. 1985); United States v. Myers, 102 F.3d 227, 234 (6th Cir. 1996).

Because Dunnican was charged with possessing marijuana with the intent to distribute it,

the government’s introduction of text messages regarding his other drug transactions was

relevant to show a necessary element of the charge: Dunnican’s intent to distribute the illegal

drug. Before presenting these text messages, the government adhered to proper protocol under

Rule 404(b) and our precedent—namely, the government (1) gave pretrial notice that it intended

to introduce the text messages to show Dunnican’s intent to distribute; and (2) presented

evidence establishing Dunnican’s ownership over the telephone at issue (i.e., that the phone was

No. 19-3092 United States v. Dunnican Page 15

seized from Dunnican’s vehicle, and that, during jail calls, Dunnican complained to an

unidentified party about the phone’s seizure). In admitting the text messages under Rule 404(b),

the district court determined that the government (1) had demonstrated sufficient evidence to

show that Dunnican had sent the messages; and (2) was introducing the messages for the proper

purpose of showing that his possession of the marijuana was with the intent of distributing it.

The court further determined that the probative value of the text messages outweighed any unfair

prejudice to Dunnican. Also, the court imposed safeguards to Dunnican’s case by instructing the

jury twice (after the testimony of Moses and during the final jury instructions) that they could

consider the text messages only as evidence of whether Dunnican had the intent to distribute

marijuana—and not for any other purpose.

Dunnican argues that the span of time separating the period when the text messages were

sent (from June 4, 2017 to October 21, 2017) and the occurrence of his charged conduct

(November 8, 2017) destroys the messages’ value in demonstrating his intent for the crime at

hand. We disagree. Generally, prior acts evidence “must be relevant to a matter at issue and

must be substantially similar to, and near in time to, the offense charged in the indictment.”

United States v. Ismail, 756 F.2d 1253, 1259 (6th Cir. 1985). But, there is not an “absolute

maximum” amount of time that will bar admission of a separate act. Id. We have even upheld

the admission of substantially older evidence of intent in a drug trafficking prosecution under

Rule 404(b). See United States v. Love, 254 F. App’x 511, 516 (6th Cir. 2007); United States v.

Persinger, 83 F. App’x. 55, 59 (6th Cir. 2003). The time periods at issue in Love and Persinger

(both, approximately eight-year spans) were much longer than the relatively short span of time—

a gap of 5 months and 9 days—separating Dunnican’s sending of the text messages and his

charged conduct.

Finally, the district court did not abuse its discretion in determining that the probative

value of the text-message evidence substantially outweighed its potential prejudicial effect under

Federal Rule of Evidence 403. Dunnican disputed both the possession and specific intent

elements of the § 841(a)(1) charge. The text-message evidence, therefore, was relevant to show

that (1) Dunnican had possessed marijuana, and (2) he had distributed that marijuana to

customers during the days and weeks before November 8, 2017—facts that indicated a pattern of

No. 19-3092 United States v. Dunnican Page 16

Dunnican’s intent to distribute. This pattern, in turn, would inform the jury’s determination of

his intent to distribute drugs here.

Dunnican argues that the district court should have excluded evidence under Rule 403

based on United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir. 1994), but that case is

inapposite. In Johnson, a cocaine distribution case, we noted our concerns with the district

court’s failures (1) to clearly identify the government’s proper purpose for admitting the

evidence and (2) to provide a clear limiting instruction to the jury regarding how to consider such

evidence. Id. at 1193–94. Neither of these issues is present in this appeal. First, unlike in

Johnson, the district court here clearly identified the government’s purpose in offering the text

messages under Rule 404(b)—to show Dunnican’s intent to distribute marijuana. Second, also

unlike in Johnson, the district court here gave the jury clear and consistent limiting instructions

on two occasions prior to the jury deliberations. Therefore, we conclude that the district court

did not abuse its discretion when admitting the text-message evidence.

IV.

Dunnican also argues that the district court erred in admitting the expert-opinion

testimony of DEA Special Agent Moses, who spoke regarding the particulars of the illegal

marijuana trade and explained specialized drug jargon and transactions. “The question of

admissibility of expert testimony is reviewed for an abuse of discretion.” United States v.

Harris, 192 F.3d 580, 588 (6th Cir. 1999); see General Electric Co. v. Joiner, 522 U.S. 136, 139

(1997).

Expert testimony regarding the very specific slang, street language, and jargon used in

the illegal drug trafficking trade may be admitted under Federal Rule of Evidence 702.

See United States v. Kilpatrick, 798 F.3d 365, 379–81 (6th Cir. 2015); Harris, 192 F.3d at 588–

89. Because such expert testimony is required for both judges and juries to make rational

determinations of a defendant’s culpability, “[c]ourts have overwhelmingly found police

officers’ expert testimony admissible where it will aid the jury’s understanding of an area, such

as drug dealing, not within the experience of the average juror.” United States v. Thomas,

74 F.3d 676, 682 (6th Cir. 1996), abrogated on other grounds by United States v. Barron, 940

No. 19-3092 United States v. Dunnican Page 17

F.3d 903, 920 (6th Cir. 2019) (emphasis added); see also United States v. Lopez-Medina, 461

F.3d 724, 742 (6th Cir. 2006).

Although Dunnican concedes that Moses possessed the requisite qualifications to provide

testimony regarding drug jargon and transactions, he claims that Moses misinterpreted the

record, and therefore, offered an opinion on Dunnican’s mental state—a violation of Federal

Rule of Evidence 704(b). The pertinent portion of this Rule provides that “[i]n a criminal case,

an expert witness must not state an opinion about whether a defendant did or did not have a

mental state or condition that constitutes an element of the crime charged or of a defense.”

Moreover, “[l]aw enforcement officers may testify concerning the methods and techniques

employed in an area of criminal activity and to establish ‘modus operandi’ of particular crimes.”

United States v. Pearce, 912 F.2d 159, 163 (6th Cir. 1990). Nonetheless, “Rule

704(b) . . . prevents an expert witness from testifying that a defendant in a criminal case did or

did not have the requisite mental state or condition constituting an element of the crime charged,

as ultimate issues are matters for the trier of fact.” United States v. Combs, 369 F.3d 925, 940

(6th Cir. 2004); see also United States v. Watson, 260 F.3d 301, 309 (3d Cir. 2001) (“Rule

704(b) may be violated when the prosecutor’s question is plainly designed to elicit the expert's

testimony about the mental state of the defendant, or when the expert triggers the application of

Rule 704(b) by directly referring to the defendant’s intent, mental state, or mens rea.”) (citations

and quotations omitted)). Therefore, we must ask “whether the expert actually referred to the

intent of the defendant or, instead, simply described in general terms the common practices of

those who clearly do possess the requisite intent, leaving unstated the inference that the

defendant, having been caught engaging in more or less the same practices, also possessed the

requisite intent.” Combs, 369 F.3d at 940 (quoting United States v. Frost, 125 F.3d 346, 383–84

(6th Cir. 1997)).

A plain reading of the disputed testimony demonstrates that Moses offered no opinion on

Dunnican’s mental state or intent. Rather, Moses, drawing upon his training, experience, and

review of the evidence, simply shared his subjective assessment of the facts at hand: that it

“appear[ed] to [him]” that the marijuana discovered in Dunnican’s car “was packed for resale.”

(R. 69: Moses Trans., PageID 801–02).

No. 19-3092 United States v. Dunnican Page 18

Q.: So Agent Moses, based on your review of this case, looking at your

experience working at the DEA, did you come to a conclusion about whether the

marijuana taken out of the trunk was intended for distribution or whether it would

have been intended for personal use?

MR. DUFFRIN: Objection.

THE COURT: It’s overruled.

THE WITNESS: I did. In my opinion, just based on the reports as I read them,

the photographs, the lab reports and then the text messages, it certainly appears to

me that that marijuana was packaged for resale.

(Id.) (emphasis added).

At no point did Moses state any opinion of Dunnican’s state of mind. Rather, Moses

merely offered “general terms” (i.e., the “marijuana was packed for resale”) related to the

“common practices” of drug dealers “who possess the requisite intent” to distribute marijuana.

Combs, 369 F.3d 940 (quotation omitted). Moses did not explicitly direct the jury to reach an

improper conclusion. Therefore, any inference they drew regarding Dunnican’s intent to

“engage[] in more or less the same practices,” was left unstated. Id.

Moses’s testimony did not suffer from the infirmities of the agent’s testimony we ruled

invalid in United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013). In Freeman, we deemed

the challenged agent to be a lay person witness; therefore, we analyzed his testimony under Rule

701, not Rule 702. Id. However, even under a Rule 702 analysis, the testimony would have

been problematic, because, as the government conceded up front, the agent “lacked the first-hand

knowledge required to lay a sufficient foundation for his testimony.” Id. The agent “repeatedly

substantiated his responses and inferences with generic information and references to the

investigation as a whole.” Id. at 596. He also “spoon-fed his interpretations of the phone calls

and the government’s theory of the case to the jury, interpreting even ordinary English

language.” Id. at 597. We concluded that portions of his testimony were “[m]ere speculation,”

and that he “rel[ied] on hearsay evidence.” Id. at 596.

In contrast with its treatment of the agent in Freeman, the government here laid a

sufficient foundation for Moses to provide expert opinion, based on his extensive training and

experience—a fact that Dunnican does not dispute. Also, unlike the witness in Freeman, Moses

grounded his opinions in concrete, objective facts—his analysis of the “photographs,” the “lab

No. 19-3092 United States v. Dunnican Page 19

reports,” and the “text messages”—none of which constituted speculation or hearsay. See United

States v. Brown, 7 F.3d 648, 653 (7th Cir. 1993) (“[The agent] based his opinion on his

examination of the physical evidence itself, including the crack confiscated from [the defendant],

and on the police reports of [the defendant’s] arrest. These are precisely the types of evidence

experts in the field of narcotics interdiction rely on to form their opinions.”). Finally, unlike the

prosecutor in Freeman, the government neither asked, nor led, Moses to offer legal conclusions,

based on hypothetical questions that would result in his improper assessment of Dunnican’s

intent.

Accordingly, the district court did not abuse its discretion in admitting the testimony of

Moses.

V.

Dunnican argues that the district court erred in denying his motion for acquittal pursuant

to Federal Rule of Criminal Procedure 29. This Rule requires the district court, on the

defendant’s proper motion, to “enter a judgment of acquittal of any offense for which the

evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29. In determining whether

Dunnican’s conviction was supported by sufficient evidence, “we must view [that] evidence in

the light most favorable to the government.” United States v. Faymore, 736 F.2d 328, 334 (6th

Cir. 1984) (citing United States v. Glasser, 315 U.S. 60, 62 (1942)).

However, Dunnican neither renewed his Rule 29 motion after presenting evidence, nor

did he renew it after the government presented a rebuttal witness. He, therefore, is entitled to

reversal of the district court’s denial of his Rule 29 motion only if this ruling resulted in a

“manifest miscarriage of justice.” See Faymore, 736 F.2d at 334 (“Absent a manifest

miscarriage of justice, we are unable to review the district court’s denial of a Rule 29 Motion

where the defendant did not renew that Motion at the close of all of the evidence.”). In these

circumstances, we may reverse the conviction only “if the record is ‘devoid of evidence pointing

to guilt.’” United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002) (quoting United States v.

Abdullah, 162 F.3d 897, 903 (6th Cir. 1998); see United States v. Williams, 940 F.2d 176, 180

(6th Cir. 1991).

No. 19-3092 United States v. Dunnican Page 20

Here, the government clearly has presented sufficient evidence of all of the elements of

Dunnican’s three charges. See 18 U.S.C. § 922(g); § 841(a)(1) and (b)(1)(D); § 924(c). First,

Dunnican conceded that he was a convicted felon, and there was a firearm in the trunk of his car,

which traveled in interstate commerce. Second, the government advanced sufficient evidence to

show that Dunnican (1) knew the firearm was in his vehicle’s trunk; (2) knew the marijuana also

was in his car; (3) intended to distribute that marijuana; and (4) carried the firearm in order to

protect his illegal drug-trafficking business. Based on this evidence, a reasonable jury could

have found Dunnican guilty. Therefore, we affirm the district court’s denial of Dunnican’s

motion for a judgment of acquittal. See Faymore, 736 F.2d at 334.

VI.

We also hold that Dunnican was not entitled to a new trial, pursuant to Federal Rule of

Criminal Procedure 33.9 Rule 33 states that “[u]pon the defendant’s motion, the court may

vacate any judgment and grant a new trial if the interest of justice so requires.” However, “[t]he

decision whether to grant a new trial is left to the sound discretion of the district court, and this

Court will not reverse absent a clear abuse of discretion.” United States v. Pierce, 62 F.3d 818,

823 (6th Cir. 1995) (citation omitted). This standard applies even if the party’s motion related to

issues of alleged juror misconduct, as “‘[t]he trial judge is in the best position to determine the

nature of the alleged jury misconduct, and . . . to determine appropriate remedies for any

demonstrated misconduct.’” United States v. Wheaton, 517 F.3d 350, 361 (6th Cir. 2008)

(quoting United States v. Copeland, 51 F.3d 611, 613 (6th Cir. 1995)). Considering the trial

record as a whole, including the facts stipulated by the parties, it is clear that the district court

exercised sound discretion at each point that a problem arose during jury deliberations.

Therefore, the court did not abuse its discretion with respect to Dunnican’s motion for a new trial

under Rule 33.

9

The district court failed to rule on Dunnican’s motion for a new trial pursuant to Federal Rule of Criminal

Procedure 33. This failure to rule constituted an implicit denial of the motion. See United States v. Dubrule,

822 F.3d 866, 884 (6th Cir. 2016).

No. 19-3092 United States v. Dunnican Page 21

Admittedly, the jury deliberations in this case were not straightforward. Nonetheless,

given the events that caused the district court to excuse Juror 12, we find that the court’s ultimate

decision to excuse Juror 12 for medical reasons was sound.

First, as verified by the record, Juror 12 had reported during voir dire that she suffered

from Crohn’s disease, but would be able to serve as a juror unless she had a “flare-up.” (R. 68

Voir Dire Trans., PageID 59). Unfortunately, during the first afternoon of deliberations, Juror 12

reported a flare-up, telling the court she had a fever and would have to go to the emergency

room, which the court allowed. (R. 70: Trial Trans., PageID 969–71).

Recognizing that jury deliberations were in progress, and cognizant that Juror 12 was the

only African-American on the panel, the district court then took careful steps before it finally

located an alternative juror. First, the day after Juror 12’s exit, the court contacted her directly to

inquire of her availability. During this phone call, Juror 12 requested to be excused; however,

trying to find a compromise, the court decided to postpone deliberations for one more day to see

if Juror 12’s condition would improve following her doctor’s visit. Juror 12’s condition did not

improve, and she failed to contact the court the next day. Therefore, after waiting for one-and-

half days to see if Juror 12’s condition would improve, the court acted appropriately to excuse

Juror 12 for medical reasons and replace her with an alternate.10

Dunnican did not object to the careful steps the district court took prior to finding a

replacement juror; in fact, Dunnican actually conceded both that the court took “reasonable steps

under the circumstances” and that the court had no other alternative, but to locate a replacement.

(R. 72: Trial Trans., PageID 1003). And following Dunnican’s lack of objection, the district

court complied with Federal Rule of Criminal Procedure 24(c)(3) in instructing the jury to begin

their deliberations anew.

However, on appeal, Dunnican argues that the rest of the jury was “impacted by issues of

race and racial disagreements,” and these “racial issues” upset all the other jurors during the

deliberation process. (Appellant’s Br., at 53). The record fails to support this claim. The district

10

As noted above, Juror 12 did later submit medical records confirming her need to be excused from jury

duty.

No. 19-3092 United States v. Dunnican Page 22

court interviewed Juror 7 and the Foreperson individually. Although both of these jurors reported

that Juror 12 was resisting discussion of the facts of the case, their answers never offered

sufficient evidence from which the court could conclude (1) that Juror 12 was refusing to

deliberate; or (2) whether any of the jurors who would render the verdict had acted

inappropriately during deliberations. There was no evidence that any juror’s previous interaction

with Juror 12 affected the verdict. Therefore, Dunnican’s speculation that there was

“documented misconduct” during jury deliberations, is without basis in fact.

Furthermore, as captured in the record, the court instructed the jury to decide the case

based solely on the evidence presented—not on any inherent bias or emotion. We act under the

assumption that jurors follow the instructions they receive. United States v. Neuhausser,

241 F.3d 460, 469 (6th Cir. 2001).

Lastly, Dunnican offers no evidentiary support for his contention that his conviction by

an all-white jury violated his Sixth Amendment rights. The Sixth Amendment promises “the

right to a speedy and public trial, by an impartial jury of the State and district wherein the crime

shall have been committed.” U.S. Const. amend. VI. This encompasses defendant’s right to

have a jury composed of a “fair cross section of the community.” See Taylor v. Louisiana,

419 U.S. 522, 526–31 (1975). Although petit juries “must be drawn from a source fairly

representative of the community,” there is “no requirement that [chosen] petit juries . . . must

mirror the community and reflect the various distinctive groups in the population.” Id. at 538.

Equally, “[d]efendants are not entitled to a jury of any particular composition, but the jury

wheels, pools of names, panels or venires from which juries are drawn must not systematically

exclude distinctive groups in the community and thereby fail to be reasonably representative

therefor.” Id.

To demonstrate a prima facie unfair jury cross-section claim, Dunnican must show:

“(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the

representation of this group in venires from which juries are selected is not fair and reasonable in

relation to the number of such persons in the community; and (3) that this underrepresentation is

due to systematic exclusion of the group in the jury-selection process.” Duren v. Missouri,

439 U.S. 357, 364 (1979). Dunnican neither addressed the elements of an unfair cross-section

No. 19-3092 United States v. Dunnican Page 23

claim, nor provided any evidence to show that African Americans were excluded from the jury,

that the representation of African Americans was not fair and reasonable, or that African

Americans were underrepresented due to any systematic exclusion. In fact, the efforts made by

the district court to retain Juror 12, an African American, on the jury, notwithstanding her illness,

support the conclusion that there was no exclusion or underrepresentation that would establish a

Sixth Amendment violation under the Duren factors. Dunnican’s mere assertion of a Sixth

Amendment violation is not enough to establish that such a violation occurred.

VII.

Finally, Dunnican argues that the court’s decision to impose an upward variance of

21 month to his sentence was substantively unreasonable.

We review the reasonableness of a sentence under an abuse of discretion standard. Gall

v. United States, 552 U.S. 38, 51 (2007); United States v. Jeross, 521 F.3d 562, 569 (6th Cir.

2008). “Reasonableness review has both substantive and procedural components.” United States

v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018) (quoting United States v. Keller, 498 F.3d 316,

322 (6th Cir. 2007)). “The procedural component requires us to ensure that the district court:

‘(1) properly calculated the applicable advisory Guidelines range; (2) considered the other

18 U.S.C. § 3553(a) factors as well as [arguments for a sentence outside the range]; and

(3) adequately articulated its reasoning for imposing the particular sentence chosen.’” Id.

(quoting United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)).

The substantive component calls for us to review the “substantive reasonableness of the

sentence imposed under an abuse of discretion standard[,] . . . taking into account the totality of

the circumstances, including the extent of any variance from the Guidelines range.” Gall v.

United States, 552 U.S. 38, 51–53 (2007); see also Jeross, 521 F.3d at 569; United States v.

Bolds, 511 F.3d 568, 581 (6th Cir. 2007). “For sentences within the Guidelines, we may apply a

rebuttable presumption of substantive reasonableness. We may not, however, apply a

presumption of unreasonableness to outside-Guidelines sentences.” Gall, 552 U.S. 28.

In general, we must give “due deference” to the district court's conclusion that the sentence

imposed is warranted by the § 3553(a) factors. Id. (citations omitted). “The fact that [we] might

No. 19-3092 United States v. Dunnican Page 24

have reasonably concluded that a different sentence was appropriate is insufficient to justify

reversal of the district court.” Id. (quoting Gall, 552 U.S. at 51). When evaluating these claims,

we focus on whether the length of the sentence is great than necessary to achieve the sentencing

goals of 18 U.S.C. § 3553. United States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir.

2010).

Based on these directives, we conclude that the district court did not abuse its discretion

in sentencing Dunnican to 84-months incarceration for his crimes of drug trafficking and being a

felon in possession of a firearm, and a consecutive 60-month mandatory sentence under Section

924(c), representing in total, an upward variance of 21 months.

Prior to imposing the sentence, the court considered the nature and circumstances of

Dunnican’s offense, his personal history and characteristics, and the other proper § 3553 factors.

Furthermore, after appropriately characterizing the Guidelines range as the “benchmark” or

“starting point” for its sentence calculation, the court outlined the importance of protecting the

public and deterring any future retributive acts by Dunnican—both of which are also required

factors under § 3553. Finally, the court considered Dunnican’s previous criminal history, which

included two separate violent crimes that he committed with firearms, involuntary manslaughter,

and felonious assault.

Given the district court’s assessment of Dunnican’s situation, and in light of its

responsibility to consider the need to provide just punishment, see 18 U.S.C. § 3553(a)(2)(A),

Dunnican’s argument that the upward variance was “punitive” is misplaced. We have

consistently rejected defendants’ arguments that a district court cannot impose upward variances

based on criminal history, simply because the Guidelines calculation already accounts for

criminal history as a factor. See, e.g. United States v. Herrera-Zuniga, 571 F.3d 568, 589 (6th

Cir. 2009); United States v. Lanning, 633 F.3d 469, 478 (6th Cir. 2011); see also United States v.

Trejo, 729 F. App’x 396, 399 (6th Cir. 2018) (“This Court has consistently held that a district

court neither commits procedural error, nor pronounces a substantively unreasonable sentence,

simply because, in evaluating the § 3553 factors, it considers, as one component of its decision to

vary upward form the Guidelines, conduct that also factored into calculating the Guidelines

range.”).

No. 19-3092 United States v. Dunnican Page 25

In addition, contrary to Dunnican’s claim, the district court did consider mitigating

factors, and explicitly acknowledged that he had (1) completed his GED; (2) attended college

classes; (3) experienced a difficult upbringing during childhood; and (4) currently had children

of his own.

Yet, even with these mitigating factors in mind, the district court reasonably found

Dunnican’s previous criminal history to be the most significant consideration in its sentencing.

A district court’s “attach[ing] [of] great weight” to a few factors does not constitute reversible

error, see Gall, 552 U.S. at 57, and inevitably, “[n]ot all § 3553(a) factors are important in every

sentencing; often one or two prevail, while others pale.” United States v. Bridgewater, 479 F.3d

439, 442 (6th Cir. 2007). And, even setting aside Dunnican’s previous violent crimes of

involuntary manslaughter and felonious assault, the fact remains that only a few months upon

being released from a second lengthy prison stay and while still on post-release control,

Dunnican was convicted for the current § 922(g), § 841(a)(1) and (b)(1)(D), and § 924(c)

offenses—two of which involve a loaded firearm. Given these circumstances, the district court

reasonably concluded that an above-Guidelines sentence was necessary in order to advance the

utilitarian objective of protecting the public and the retributivist objective of deterring Dunnican

from criminal conduct in the future.

Considering the above, it is clear that the district court did not abuse its discretion, and

Dunnican’s sentence is substantively reasonable.

VIII.

In addition to the six issues that appointed counsel raised on appeal, Dunnican submitted

a pro se supplemental brief, in which he alleged several more errors. These claims relate to

(1) alleged jurisdictional defects at the federal and district court level; and (2) constitutional

issues related to Dunnican’s conviction and confinement. However, a defendant must present a

single brief. Fed. R. App. P. 31(a); United States v. Fontana, 869 F.3d 464, 472–73 (6th Cir.

2017). Furthermore, when a defendant is represented by counsel and files a supplemental brief

pro se, we may properly decline to consider those pro se claims. United States v. Williams,

641 F.3d 758, 770 (6th Cir. 2011). And here, “because [Dunnican] was represented by counsel

No. 19-3092 United States v. Dunnican Page 26

on this appeal, we decline to address [his] pro se arguments.” Id.; cf. United States v. Martinez,

588 F.3d 301, 328 (6th Cir. 2009) (declining to address a defendant's pro se arguments because

he was represented by counsel).

IX.

To summarize, we hold the following: (1) the district court did not err in allowing the

government under Federal Rule of Evidence 902(14) to introduce data extracted from

Dunnican’s cellular telephone; (2) the district court properly exercised its discretion in allowing

the government under Federal Rule of Evidence 404(b)to introduce text messages from

Dunnican’s cellular telephone; (3) the district court properly exercised its discretion in allowing

a DEA agent to offer opinion testimony that the marijuana found in Dunnican’s car appeared to

be packaged for distribution; (4) the district court properly exercised its discretion in denying

Dunnican’s motion for a judgment of acquittal following the government’s presentation of

evidence; (5) the district court properly exercised its discretion when denying Dunnican’s motion

for a new trial following the dismissal of a jury member; and (6) the district court properly

exercised its discretion in imposing a 21-month upward variance on Dunnican’s sentence.

Therefore, we AFFIRM the district court’s judgment in full.