United States v. Norman West

RECOMMENDED FOR PUBLICATION

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

File Name: 20a0182p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

> No. 19-6106

v. │

│

│

NORMAN DAVID WEST, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 5:18-cr-00144-4—Gregory F. Van Tatenhove, District Judge.

Decided and Filed: June 12, 2020

Before: GILMAN, KETHLEDGE, and MURPHY, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Edward M. Thompson, THOMPSON LAW OFFICE, Lexington, Kentucky, for

Appellant. Charles P. Wisdom, Jr., Lauren Tanner Bradley, UNITED STATES ATTORNEY’S

OFFICE, Lexington, Kentucky, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Norman David West pleaded guilty to

knowingly and intentionally distributing methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1). At West’s sentencing hearing, the district court imposed a sentence of 40 months’

imprisonment.

No. 19-6106 United States v. West Page 2

West now appeals his sentence. He argues that the district court incorrectly applied the

two-level enhancement under United States Sentencing Guidelines (U.S.S.G.) § 2D1.1(b)(1) for

the possession of a firearm during a drug-related offense. West also contends that the 40-month

sentence was unreasonable under the factors enumerated in 18 U.S.C. § 3553(a). For the reasons

set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

Law enforcement in Madison County, Kentucky began investigating West for

distributing methamphetamine in November 2017. In February 2018, they used a confidential

informant to buy methamphetamine from West in a Walmart restroom. The confidential

informant purchased 14.18 grams of methamphetamine from West in exchange for $300.

Two months later, in April 2018, law enforcement arranged a controlled buy from West

using the same confidential informant. This time, the informant met West inside a Meijer

supermarket restroom. West gave the informant what later proved to be 116.112 grams of

simulated methamphetamine—Epsom salts—for $900.

Upon exiting the Meijer supermarket, West entered the rear passenger side of a vehicle in

which the driver’s seat was occupied by Erroll Johnson. Erroll Johnson’s romantic partner,

Jeanetta Johnson, sat in the front passenger seat. (Erroll Johnson and Jeanetta Johnson share the

same last name but are unrelated.) Law enforcement stopped and searched the vehicle,

discovering a Glock .22 semiautomatic pistol under the front passenger seat.

The investigation ultimately led to two charges being brought against West in an

indictment: one for knowingly and intentionally distributing methamphetamine in February

2018, in violation of 21 U.S.C. § 841(a)(1), and the other for being a felon in possession of a

firearm in April 2018, in violation of 18 U.S.C. § 922(g)(1). West pleaded guilty to the

methamphetamine-distribution charge, but not to the felon-in-possession charge. The

government then moved to dismiss the felon-in-possession charge as part of the plea agreement

with West.

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Even though West did not plead guilty to possessing a firearm during the April 2018

transaction, the issue of the gun became relevant at sentencing. The district court determined

that West’s base offense level should be increased by two levels pursuant to U.S.S.G.

§ 2D1.1(b)(1) because a firearm was possessed in relation to West’s drug-related offense.

Factoring in this enhancement, the recommended Guidelines range was a sentence of between 37

and 46 months of imprisonment. The district court imposed a within-Guidelines sentence of 40

months.

West appeals the application of the U.S.S.G. § 2D1.1(b)(1) enhancement to his sentence,

arguing (1) that the district court abused its discretion in determining that he possessed the gun

found in the vehicle after the April 2018 transaction, and (2) that the transaction was not

“relevant conduct” under U.S.S.G. § 1B1.3(a)(2). He also contends that the district court did not

adequately consider the factors enumerated under 18 § U.S.C. 3553(a) in determining the 40-

month length of his sentence.

II. ANALYSIS

A. Standard of review

We review findings of fact made at sentencing under the clear-error standard. United

States v. Orlando, 363 F.3d 596, 600 (6th Cir. 2004) Under this standard, “a reviewing court

must ask whether on the entire evidence it is left with the definite and firm conviction that a

mistake has been committed.” Id. at 603 (citation and internal quotation marks omitted). We

review the district court’s interpretation of the Sentencing Guidelines de novo. Id. at 600.

Challenges to the substantive and procedural reasonableness of a defendant’s sentence

are reviewed under the abuse-of-discretion standard. United States v. Rayyan, 885 F.3d 436,

440, 442 (6th Cir. 2018). When a sentence falls within the range recommended by the

Sentencing Guidelines—as did West’s—we presume that the sentence was reasonable. United

States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).

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B. The enhancement under U.S.S.G. § 2D1.1(b)(1)

U.S.S.G. § 2D1.1(b)(1) authorizes district courts to apply a two-level enhancement to the

offense level for a drug-related conviction “[i]f a dangerous weapon (including a firearm) was

possessed.” “The enhancement should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.11(A).

“To apply the enhancement under section 2D1.1(b)(1), the government must establish

that (1) the defendant actually or constructively possessed the weapon, and (2) such possession

was during the commission of the offense.” United States v. Hill, 79 F.3d 1477, 1485 (6th Cir.

1996) (citation and internal quotation marks omitted). These elements must be proven by a

preponderance of the evidence. United States v. McCloud, 935 F.3d 527, 531 (6th Cir. 2019).

As to the first element of whether a weapon was possessed, this is a factual finding that

we review under the clear-error standard. United States v. Pryor, 842 F.3d 441, 452 (6th Cir.

2016). “Constructive possession of an item is the ownership, or dominion or control over the

item itself, or dominion over the premises where the item is located.” Hill, 79 F.3d at 1485

(citation and internal quotation marks omitted).

Regarding the second element of whether the possession of a weapon occurred during the

commission of the drug offense, this court has clarified that the weapon need not be possessed

during the commission of the actual offense of conviction. United States v. Faison, 339 F.3d

518, 520 (6th Cir. 2003). Rather, “all that the government need show is that the dangerous

weapon be possessed during ‘relevant conduct.’” Id. Whether the April 2018 transaction counts

as “relevant conduct” to the February 2018 drug-possession charge is a question of law that we

review de novo. See Hill, 79 F.3d at 1481.

“Relevant conduct,” in turn, is defined under U.S.S.G. § 1B1.3. The applicable

subsection of this Guideline, U.S.S.G. § 1B1.3(a)(2), provides that, “solely with respect to

offenses of a character for which § 3D1.2(d) would require grouping of multiple counts,”

relevant conduct includes “all acts and omissions . . . that were part of the same course of

conduct or common scheme or plan as the offense of conviction.”

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Offenses “qualify as part of the same course of conduct if 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.” U.S.S.G. § 1B1.3 cmt. n.5(B)(ii). The sentencing court must

consider “the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and

the time interval between the offenses” in assessing whether offenses occurred during the same

course of conduct. Id. On the other hand, “[f]or two or more offenses to constitute part of a

common scheme or plan, they must be substantially connected to each other by at least one

common factor, such as common victims, common accomplices, common purpose, or

similar modus operandi.” U.S.S.G. § 1B1.3 cmt. n.5(B)(i).

Once the government shows that the defendant possessed a weapon during relevant

conduct, a presumption arises that the weapon was connected with the offense of conviction.

United States v. Moreno, 899 F.2d 465, 470 (6th Cir. 1990). The defendant may overcome this

presumption only upon demonstrating that “it is clearly improbable that the weapon was

connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.11(A).

1. Whether West possessed the weapon

West first challenges the district court’s factual finding that he possessed the weapon

found in the vehicle being driven by Erroll Johnson in April 2018. He argues that the only

evidence showing that he possessed the gun was hearsay testimony from Jeanetta Johnson (the

front-seat passenger), which was relayed to the court by Officer Hunter Harrison, the law-

enforcement officer who initiated the traffic stop. According to Officer Harrison, Jeanetta

Johnson informed the officer that West “stated that he had a gun on him and needed to get rid of

it” after West entered the car outside the Meijer supermarket. Because all three of the occupants

of the vehicle denied ownership of the gun, Officer Harrison relied in part on Jeanetta Johnson’s

statement in charging West with possession of the weapon.

West contends that this evidence was unreliable because Jeannetta Johnson was in a

romantic relationship with Erroll Johnson, the driver of the car. (Impliedly, Jeanetta Johnson

sought to protect Erroll Johnson by implicating West.) He also points to the fact that Erroll

Johnson, who was charged with joint possession of the firearm found in the vehicle, claimed to

No. 19-6106 United States v. West Page 6

have no knowledge of the gun or who owned it. Absent the hearsay evidence, West contends,

there was no proof that he had knowledge of the presence of the gun under the front passenger

seat.

But these arguments do not compel us to overturn the district court’s factual finding

under the clear-error standard. Hearsay evidence, such as Jeanetta’s Johnson’s statement, may

be relied upon by the sentencing court. United States v. Armstrong, 920 F.3d 395, 398 (6th Cir.

2019) (explaining that district courts may consider hearsay evidence at sentencing “[s]o long as

the information has some evidentiary basis to satisfy a minimal indicium of reliability” (citation

and internal quotation marks omitted) (emphasis in original)). Officer Harrison testified that he

believed that Jeanetta Johnson had been truthful in her account, and he explained that she had

been “Mirandized” and was not herself prohibited from possessing a firearm. Furthermore, he

testified that the gun was within West’s reach under the front passenger seat. This evidence

overcomes the “relatively low hurdle” of the indicia-of-reliability standard. See id. (citation

omitted). We are therefore not left with the “definite and firm conviction” that the district court

erred in finding that West possessed the gun. See United States v. Orlando, 363 F.3d 596, 603

(6th Cir. 2004) (citation omitted).

2. Whether the weapon was possessed during “relevant conduct”

We now turn to the question of whether the April 2018 transaction was “relevant

conduct” as defined by U.S.S.G. § 1B1.3(a)(2). For West’s April 2018 transaction to be

“relevant,” his actions must “amount to an offense for which a criminal defendant could

potentially be incarcerated,” although the relevant conduct need not lead to a conviction. See

United States v. Henry, 819 F.3d 856, 865 (6th Cir. 2016) (citation, brackets, and internal

quotation marks omitted). Moreover, “state offenses may qualify as ‘relevant conduct’

under U.S.S.G. § 1B1.3(a)(2).” United States v. Maken, 510 F.3d 654, 657 (6th Cir. 2007); see

also United States v. Hough, 276 F.3d 884, 898 (6th Cir. 2002) (explaining that “a federal district

court may consider any relevant conduct when sentencing a defendant, whether or not the

conduct is a federal crime” (citation omitted)).

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The government argues that the April 2018 transaction was a drug offense for which

West could have been incarcerated under Kentucky state law. It cites Kentucky Revised Statute

§ 218A.350(1), which provides that “[n]o person shall sell or transfer any substance, other than a

controlled substance, with the representation or upon creation of an impression that the substance

which is sold or transferred is a controlled substance.” This offense constitutes a Class A

misdemeanor in Kentucky, carrying a penalty of up to 12 months’ imprisonment. Ky. Rev. Stat.

Ann. §§ 218A.350(7)(a), 532.090. The April 2018 Epsom salts transaction therefore meets the

threshold requirement to be relevant conduct, even though it was both uncharged and a state

offense only.

We must next consider whether the April 2018 transaction qualifies as either (1) part of

the same “course of conduct,” or (2) part of a “common scheme or plan” as the February 2018

drug transaction. See U.S.S.G. § 1B1.3(a)(2). West argues that the April 2018 transaction was

not part of the same course of conduct as the February 2018 drug transaction because the two

events cannot be considered “regular” and because a two-month time interval separated them.

He does not address, however, the district court’s reasoning that the February and April

transactions were part of a common scheme or plan. As the district court pointed out, the

transactions involved a common victim (the confidential informant), a common purpose (for

West to receive money from illicit transactions), and a similar modus operandi (conducting the

illicit transactions from Walmart or Meijer restrooms).

We agree with the district court’s reasoning and conclude that the April 2018 transaction

took place as part of the same common scheme or plan as the February 2018 transaction. The

February and April transactions were substantially connected by not just one, but three, common

factors. See, e.g., United States v. McCloud, 935 F.3d 527, 532 (6th Cir. 2019) (concluding that

two drug sales had the common purpose of “distribut[ing] drugs”); Henry, 819 F.3d at 865

(determining that illegal firearm sales were part of a common scheme or plan where “the same

location was used” and “the same parties were present at the sales”).

Linking the two transactions is fully consistent with the reason for the enhancement

under U.S.S.G. § 2D1.1(b)(1), which “reflects the increased danger of violence when drug

traffickers possess weapons.” U.S.S.G. § 2D1.1 cmt. n.11(A). Possessing a gun while

No. 19-6106 United States v. West Page 8

trafficking simulated drugs involves no less danger than possessing a gun while trafficking

genuine methamphetamine. And perhaps there is even more of a danger because a deceived drug

purchaser is far more likely to angrily confront the selling drug dealer than a purchaser who gets

what he paid for.

Based on our conclusion that the April 2018 transaction was part of the same common

scheme or plan as the February 2018 transaction, we have no need to address whether the

transactions were part of the same course of conduct. See McCloud, 935 F.3d at 533 (explaining

that whether conduct is part of a common scheme or plan “is an alternative basis for a finding of

relevant conduct that is not subject to the same-course-of-conduct factors” (emphasis omitted)).

West’s final argument on this issue is that any potential criminal offense committed by

him during the April 2018 transaction would not be “groupable” with the drug offense for which

he was convicted. Indeed, U.S.S.G. § 1B1.3(a)(2) applies “solely with respect to offenses of a

character for which § 3D1.2(d) would require grouping of multiple counts.” U.S.S.G.

§ 3D1.2(d), in turn, applies

[w]hen the offense level is determined largely on the basis of the total amount of

harm or loss, the quantity of a substance involved, or some other measure of

aggregate harm, or if the offense behavior is ongoing or continuous in nature and

the offense guideline is written to cover such behavior.

The subsection then lists specified federal offenses that are “groupable” under this category.

West’s offense of conviction—distributing methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1)—is listed as a groupable offense under U.S.S.G. § 3D1.2(d). His putative Epsom

salts offense under Kentucky Revised Statutes § 218A.350 is not.

But this court has explained that U.S.S.G. § 1B1.3(a)(2) “is not concerned with whether

the relevant conduct would be grouped with the offense conduct.” United States v. Hodge, 805

F.3d 675, 682 (6th Cir. 2015) (emphasis in original). Rather, “[§] 1B1.3(a)(2) simply says its

provisions apply to groupable ‘offenses,’ and then authorizes courts to consider other acts that

‘were part of the same course of conduct or common scheme or plan as the offense of

conviction.’” Id. Relevant conduct may therefore include violations of state law not listed as

groupable under U.S.S.G. § 3D1.2(d). See, e.g., United States v. Maken, 510 F.3d 654, 659 (6th

No. 19-6106 United States v. West Page 9

Cir. 2007) (determining that a state tax offense was relevant conduct under § 1B1.3(a)(2));

United States v. Bandy, 172 F.3d 49, 1999 WL 17646, at *3 (6th Cir. 1999) (table) (determining

that the state offense of mail theft was relevant without assessing whether it grouped with the

underlying federal offense of conviction).

We therefore conclude that the district court did not err in considering West’s April 2018

transaction to be relevant conduct under the Guidelines. As such, we find no error in the

application of the enhancement under U.S.S.G. § 2D1.1(b)(1) to West’s sentence.

C. The reasonableness of West’s sentence under 18 U.S.C. § 3553(a)

West next challenges the length of his sentence, arguing that the 40 months of

imprisonment imposed by the district court was “truly greater than necessary.” West specifically

argues that the district court did not give enough consideration to West’s history and

characteristics under 18 U.S.C. § 3553(a)(1) and to West’s need for correctional treatment under

18 U.S.C. § 3553(a)(2)(D) in reaching the 40-month sentence. He asserts that, because he is a

drug addict in need of treatment, a shorter sentence with a period of drug rehabilitation would be

more appropriate.

West does not make clear whether he challenges the procedural or the substantive

reasonableness of his sentence. His claim that the district court did not adequately consider his

need for correctional treatment under 18 U.S.C. § 3553(a)(2)(D) may be construed as a

procedural challenge. See United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018)

(explaining that whether the district court failed to consider a factor is a question of procedural

reasonableness). This claim is subject to plain-error review because West did not raise the

objection before the district court. See United States v. Bailey, 488 F.3d 363, 368 (6th Cir.

2007). West’s challenge to the length of his sentence, on the other hand, is a claim that his

sentence was substantively unreasonable. See Rayyan, 885 F.3d at 442 (“A claim that a

sentence is substantively unreasonable is a claim that a sentence is too long (if a defendant

appeals).”).

No. 19-6106 United States v. West Page 10

Regarding West’s procedural challenge, the record shows that the district court did

indeed weigh West’s need for drug rehabilitation in handing down West’s sentence.

Specifically, the court explained that the need for treatment was “one of the biggest issues for

[West],” and it recommended that West participate in a residential drug-treatment program

during his period of incarceration. The record thus shows no plain error.

As for West’s argument that the district court imposed an unreasonably long sentence, his

argument “ultimately boils down to an assertion that the district court should have balanced the

§ 3553(a) factors differently.” United States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008). But

such arguments are “simply beyond the scope of our appellate review, which looks to whether

the sentence is reasonable, as opposed to whether in the first instance we would have imposed

the same sentence.” Id. (citation omitted). Indeed, this court has explained that “[t]he fact that

the district court did not give the defendant the exact sentence he sought is not a cognizable basis

to appeal, particularly where the district court followed the mandate of § 3553(a) in all relevant

respects.” United States v. Dexta, 470 F.3d 612, 616 (6th Cir. 2006) (citation omitted). West’s

desire for a shorter sentence is understandable, but the district court did not abuse its discretion

in imposing a sentence within the relevant Guidelines range.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.