Petition for Writ of Certiorari — Christopher Fitzgerald, Petitioner v. United States

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United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

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United States Court of Appeals, Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

Christopher FITZGERALD (No. 17-3699);

Chiquita Anderson (No. 17-3714); Rashard

Smith (No. 17-3718), Defendants-Appellants.

Nos. 17-3699

17-3714

17-3718

Filed November 01, 2018

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN

DISTRICT OF OHIO

Attorneys and Law Firms

Matthew B. Kall, Assistant U.S. Attorney, Office of the

U.S. Attorney, Cleveland, OH, for Plaintiff-Appellee

Vanessa Faye Malone, Federal Public Defender, Federal

Public Defender's Office, Akron, OH, for DefendantsAppellant

BEFORE: GUY, WHITE, and STRANCH, Circuit

Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

*1 A jury found Christopher Fitzgerald, Chiquita

Anderson, and Rashard Smith guilty of conspiracy

to distribute cocaine through Fitzgerald’s and Smith’s

employer, Federal Express (FedEx), and for using a

telephone to facilitate the commission of the conspiracy.

PETITIONER APPENDIX

Fitzgerald was also convicted of distributing cocaine,

and Anderson was convicted of managing a drug

premises. On appeal, Fitzgerald challenges the search

warrant executed on his residence, the sufficiency of the

evidence for his conspiracy and distribution convictions,

the district court’s determination of drug quantity

involved in the conspiracy, the obstruction of justice

enhancement to his sentence, and the reasonableness of

his sentence. Anderson similarly challenges the sufficiency

of the evidence for her three convictions, the court’s

determination of drug quantity, and the reasonableness

of her sentence. Smith solely challenges the court’s

determination of drug quantity for his sentence. We

conclude that while the search warrant did not establish

probable cause to search Fitzgerald’s residence, the

good-faith exception rescues the search. We further

find that the jury had sufficient evidence to convict

Fitzgerald and Anderson and that the district court

committed no errors in sentencing. Accordingly, we

AFFIRM the district court’s denial of Fitzgerald’s

motion to suppress, AFFIRM defendants’ convictions,

and AFFIRM defendants’ sentences.

I. BACKGROUND

A. The Conspiracy

The charges against defendants Fitzgerald, Anderson, and

Smith arose from a complex year-long investigation of

Walter Walker, a suspected drug trafficker with prior

drug convictions, by the Northern Ohio Law Enforcement

Task Force (NOLETF), a joint federal, state, and local

task force. NOLETF linked Fitzgerald to Walker on

April 7, 2014, when police responded to an emergency

call by a man who attempted suicide in an apartment in

Aurora, Ohio. The apartment was leased to Fitzgerald,

who subleased it to Walker; the man who attempted

suicide was Walker’s cousin and admitted to helping

Walker traffic drugs. Upon entering the apartment after

the emergency call, officers observed items consistent

with drug trafficking, such as suitcases with the backing

cut open, vacuum-sealer bags, wrappings with white

residue on them, and wrappings smeared with mustard,

a technique believed to be used to thwart drug-sniffing

dogs. During a subsequent narcotics search of the Aurora

apartment, many of the drug-related items were missing.

Officers suspected that Fitzgerald and Walker, who were

at the apartment building between the initial search and

the narcotics search, had removed the items

Pet. App. 1a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

For the next year, NOLETF officers used physical and

video surveillance, tracking devices on vehicles, toll data

on telephones, and authorized wiretaps on Walker’s

and Fitzgerald’s cell phones to gather information

about potential drug trafficking. NOLETF also used

a confidential informant, known as CS#5. In May

2015, the informant, who claimed to speak frequently

with Anderson, Fitzgerald’s half-sister, told officers that

Fitzgerald and Walker used FedEx to ship large quantities

of cocaine and marijuana to the Cleveland area and that

Anderson helped pick up drug shipments from Fitzgerald.

The informant repeatedly provided information about

Walker, Fitzgerald, and Anderson, as officers monitored

coded cell phone conversations between the suspects

that allegedly alluded to drug deliveries, but neither the

informant nor the officers observed any drug transactions

or seized any contraband between April 2014 and April

2015.

*2 Details regarding a conspiracy emerged after Walker

turned himself in to authorities in April 2015. Walker

testified in Fitzgerald, Smith, and Anderson’s federal

trial in April 2016, as follows. Since approximately 2010,

Fitzgerald had used his position as a FedEx delivery driver

to help Walker deliver drugs to the Cleveland area—

first, marijuana from Arizona and later, cocaine from

California. Each cocaine shipment contained between

one and two kilograms of cocaine, though Walker also

mentioned at least five “dry runs” that did not contain

drugs. Shipments were consistent, as frequent as once per

week. After receiving the FedEx packages, Walker stored

drugs and money at Anderson’s house, where he divided

the drug shipments into smaller quantities for distribution.

Walker also asked Anderson to drive behind his car when

he was delivering drugs to help him avoid detection by

police. By 2013, Fitzgerald had recruited his coworker

Smith to deliver packages of drugs on his weekday delivery

route, while Fitzgerald handled Saturday deliveries. On

several occasions, Fitzgerald also helped Walker transport

money to California by concealing cash in the lining of

suitcases.

Fitzgerald, drawing on his 18 years as a FedEx driver,

suggested methods for Walker’s shipments to evade

detection by authorities. He advised Walker to create

a business account under a false name with an address

located in a state not known as a “source” state for

drugs. Walker testified he made three or four accounts

to send packages from California. The investigation

specifically identified one of Walker’s accounts under the

name Elizabeth Pankratz of Praxair Medical Supplies,

a fictional company based in North Dakota, which

sent 38 packages between April 2014 and April 2015.

Fitzgerald also recommended shipping to businesses such

as hospitals and using hard black cases by the brand

Pelican to ship the drugs, as investigators were less likely

to attempt to open a locked case. When he required more

detailed tracking information about packages, Fitzgerald

paid another FedEx employee, Shannon Grzybowski, to

pull that information for him and, on two occasions, put

Pelican cases on hold for him or Smith to pick up and

deliver.

Walker testified that he met with Fitzgerald on January

31, 2015, to pick up a cocaine shipment and that he

then went to Anderson’s residence to break down the

drugs, calling Anderson’s cell phone to let her know he

arrived. Based on evidence provided by the Government,

NOLETF officers attempted to witness the January 31

delivery after intercepting several phone calls between

Walker and Fitzgerald discussing possible meeting places.

Though officers did not observe the delivery, the tracking

device on Walker’s car showed him near one of the

agreed-upon spots on Fitzgerald’s delivery route at the

delivery time. An officer testified that the tracker showed

Walker’s vehicle then went immediately to Anderson’s

address, and officers watched Walker leave the residence.

In subsequent months, video surveillance of Anderson’s

residence showed Walker entering with Pelican cases and

giving Anderson what an officer believed was money, and

Anderson leaving the residence to follow Walker in her

car. At trial, Fitzgerald denied on the stand that he met

Walker on January 31.

Walker testified that he initially paid Fitzgerald $50

per pound of marijuana delivered and between $2,000

and $2,500 per shipment of cocaine. Fitzgerald then

paid Smith, though Walker claimed he also dealt with

Smith directly over five times. Walker periodically paid

Anderson $1,000 for the use of her home and her

assistance as a lookout. Fitzgerald used some of his

earnings to buy and manage bars and clubs where

Anderson also worked. By the time Walker turned

himself in, he owed Fitzgerald and Smith between

$20,000, according to Walker, and $31,000, according to

Fitzgerald.

Pet. App. 2a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

B. Search Warrant for Fitzgerald’s Residence

On April 9, 2015, NOLETF detectives applied for

and received search warrants for Fitzgerald’s residence,

Fitzgerald’s storage locker, Anderson’s residence, two

locations where Walker resided, and Walker’s storage

locker. The 62-page affidavit in support of the

search warrant on Fitzgerald’s residence in Beachwood,

Ohio primarily describes confidential informant CS#5’s

statements, locations tracked for Walker’s vehicle, and

transcripts of wiretapped phone conversations between

Walker, Fitzgerald, and Anderson. The first four pages

stated the affiant John Guzik’s qualifications as a

narcotics detective and provided standard information

regarding drug crimes. The Beachwood address is

only mentioned six times, primarily establishing it as

Fitzgerald’s residence.

*3 When executing the search warrants, officers did not

find drugs but did find Pelican cases, cash, burner phones,

suitcases, and money counters at Walker’s residences, as

well as scales and Pelican cases at Anderson’s residence.

At Fitzgerald’s residence, officers seized Pelican cases,

suitcases with cut-out backs, and over $20,000 in cash, all

of which Fitzgerald later sought to suppress.

C. Trial and Sentencing

After the searches, Walker turned himself in to authorities

and agreed to plead guilty to conspiracy to possess with

intent to distribute cocaine and to testify at Fitzgerald,

Anderson, and Smith’s trial in return for a possible

sentence reduction. He received a sentence of 57 months.

On April 20, 2016, Fitzgerald, Anderson, and Smith

were indicted on nine counts. Count One for all three

defendants was conspiring to possess with intent to

distribute cocaine, in violation of 21 U.S.C. § 846 and

21 U.S.C. § 841. Only Fitzgerald was charged with intent

to distribute a specific quantity amount of cocaine—

five kilograms or more. Fitzgerald was named in five

additional counts: distributing cocaine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count Two); using a

communication facility (his employer, FedEx) to facilitate

the conspiracy and distribution of cocaine in violation

of 21 U.S.C. § 843(b) (Count Three); and using a

communication facility (a telephone) on three separate

occasions to facilitate the conspiracy in violation of 21

U.S.C. § 843(b) (Counts Five, Seven, and Nine). Anderson

was named in two more counts: managing premises for

the purpose of manufacturing, storing, distributing, and

using cocaine in violation of 21 U.S.C. § 856(a)(2) (Count

Four); and using a telephone to facilitate the conspiracy

in violation of 21 U.S.C. § 843(b) (Count Six). Smith was

named in one more count of using a telephone to facilitate

the conspiracy in violation of 21 U.S.C. § 843(b) (Count

Eight).

During seven days of trial, the Government presented

testimony by Walker; Grzybowski, the FedEx employee

who also pled guilty and testified as part of her plea

agreement; a FedEx security specialist; a representative

of an actually existing company named Praxair (not

based in North Dakota); and numerous law enforcement

officials from different agencies involved with the

investigation. Fitzgerald testified; Anderson and Smith

did not. Fitzgerald testified that his phone conversations

intercepted by NOLETF involved Walker’s attempted

investments in Fitzgerald’s bars, not drug deliveries, and

that Fitzgerald’s work at the bars generated the extra cash

he deposited each month, which he did not report in his tax

returns. On cross examination, he denied meeting Walker

on January 31, 2015. The jury returned verdicts of guilty

on all counts for all defendants and a forfeiture verdict for

Fitzgerald. The district court denied each defendant’s oral

motion for acquittal.

The court separately sentenced each defendant. The court

found that Fitzgerald committed perjury when he denied

he met Walker on January 31, 2015, meriting a twolevel obstruction of justice enhancement. In calculating

Fitzgerald’s Guidelines range, the court found the

conspiracy involved at least 38 kilograms of cocaine

—one kilogram per ascertained shipment delivered

by Fitzgerald, Smith, or Grzybowski—and determined

Fitzgerald was involved in conspiring to distribute

between 15 and 50 kilograms of cocaine. This resulted

in a base offense level of 32. With no criminal history,

a two-level enhancement for a leadership role in the

offense, and a two-level enhancement for obstruction of

justice for perjury, Fitzgerald’s advisory Guidelines range

was 188 to 235 months’ imprisonment. After considering

his personal characteristics and the circumstances of the

offense, including the fact that Walker received a 57month sentence, the court rejected Fitzgerald’s request for

a 10-year mandatory minimum sentence and imposed a

sentence of 188 months’ imprisonment for the conspiracy

conviction, at the bottom end of the Guidelines range,

Pet. App. 3a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

and ran the lesser sentences for his other convictions

concurrently.

*4 The court next sentenced Smith based on the same

drug quantity finding, setting a base offense level of

32, which, with no further adjustments and no criminal

history, resulted in an advisory Guidelines range of 121

to 151 months’ imprisonment. The court, considering the

relevant factors and noting Smith’s ability and willingness

to secure employment, varied downward on his sentence,

imposing 70 months’ imprisonment and running his other

sentence concurrently.

For Anderson’s sentencing, the court found that though

all 38 known shipments of cocaine were within the scope

of the conspiracy, the evidence did not show that each

shipment was “reasonably foreseeable” to Anderson. The

court indicated it was making a conservative estimate

(based on evidence showing that Walker made at least

three two-kilogram deliveries to Anderson’s home and

that Anderson knew the scale of the drug trafficking was

large enough that Walker owed Fitzgerald as much as

$31,000) to arrive at a quantity calculation between 5 and

15 kilograms of cocaine. Anderson’s base offense level

was 30; with a two-level enhancement for maintaining her

residence as a drug premise and a criminal history of II,

the advisory Guidelines range was 135 to 168 months’

imprisonment. After considering the relevant factors and

circumstances, including potential disparity with Walker’s

sentence, the court varied below the Guidelines range to

impose a 108-month term of imprisonment, with her other

sentences running concurrently.

All three defendants timely appealed.

II. ANALYSIS

Fitzgerald presents the following issues on appeal: (1) the

search warrant for his residence was not valid; (2) evidence

of the conspiracy and of his one count of distribution was

insufficient; (3) the court erred in sentencing by finding

at least 15 kilograms of cocaine were involved in the

conspiracy; (4) the court erred by enhancing Fitzgerald’s

sentence for obstruction of justice for perjury; and (5)

his sentence is substantively unreasonable. Anderson

argues that the evidence was insufficient to support her

three convictions and that her sentence was substantively

unreasonable. Smith challenges the district court’s finding

that at least 15 kilograms of cocaine were involved in the

conspiracy.

A. Search Warrant (Fitzgerald)

We review de novo the legal conclusion that an affidavit

supporting a search warrant was sufficient to show

probable cause. United States v. Brown, 828 F.3d 375,

381 (6th Cir. 2016). “Given our de novo standard and

the fact that our review focuses on the probable cause

determination of the magistrate judge in issuing the

search warrant, we owe the district court’s conclusion no

particular deference.” Id. (citation and internal quotation

marks omitted). When the district court denies a motion to

suppress, we review all evidence in the light most favorable

to the government. United States v. Galloway, 316 F.3d

624, 628 (6th Cir. 2003).

1. Probable Cause and the Nexus Requirement

The Fourth Amendment protects “[t]he right of the

people to be secure ... against unreasonable searches

and seizures” and provides that search warrants require

“probable cause ... describing the place to be searched,

and the persons or things to be seized.” U.S. Const.

amend. IV. A magistrate judge reviewing a warrant

application must make “a practical, common-sense

decision” whether probable cause exists under the

“totality of the circumstances.” Illinois v. Gates , 462 U.S.

213, 230, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). To

demonstrate probable cause, an affidavit must “contain

facts that indicate a fair probability that evidence of a

crime will be located on the premises of the proposed

search.” United States v. Frazier, 423 F.3d 526, 531

(6th Cir. 2005) (citation and internal quotation marks

omitted); see also Zurcher v. Stanford Daily, 436 U.S. 547,

556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (“The critical

element in a reasonable search is not that the owner of the

property is suspected of crime but that there is reasonable

cause to believe that the specific ‘things’ to be searched for

and seized are located on the property to which entry is

sought.”). The search warrant affidavit must specifically

show “a nexus between the place to be searched and the

evidence sought.” United States v. Carpenter, 360 F.3d

591, 594 (6th Cir. 2004) (quoting United States v. Van

Shutters, 163 F.3d 331, 336–37 (6th Cir. 1998) ).

Pet. App. 4a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

*5 Whether a search constitutes an unconstitutional,

unreasonable intrusion into a defendant’s home is a factintensive inquiry, and in this circuit, “[m]ultiple cases

on the nexus requirement reveal our struggle to provide

guidance for such a fact-bound legal determination.”

Brown, 828 F.3d at 382. However, some general trends

have emerged in cases where a defendant’s residence is

searched for evidence of drug dealing.

First, a defendant’s previous conviction for drug dealing

is a factor frequently cited in support of a determination

of probable cause to search that defendant’s residence for

evidence of drug dealing. We have acknowledged that “[i]n

the case of drug dealers, evidence is likely to be found

where the dealers live.” United States v. Jones, 159 F.3d

969, 975 (6th Cir. 1998) (citing United States v. Lamon,

930 F.2d 1183, 1188 (7th Cir. 1991) ). However, we also

maintain that “a defendant’s status as a drug dealer,

standing alone, does not give rise to a fair probability that

drugs will be found in defendant’s home.” United States

v. Berry, 565 F.3d 332, 339 (6th Cir. 2009) (citing Frazier,

423 F.3d at 533).

Therefore, whether or not a defendant has previous drug

dealing convictions (Fitzgerald did not), an affidavit must

provide evidence of recent or current drug activity, such

as descriptions of controlled buys or informants’ firsthand

knowledge. See id. (“There is support for the proposition

that status as a drug dealer plus observation of drug

activity near defendant’s home is sufficient to establish

probable cause to search the home.”) (citations omitted).

In Berry, we determined that there was probable cause

to search a defendant’s residence where the defendant

was a known drug dealer and was arrested outside the

residence with drugs on his person and in his vehicle. Id.

We also found probable cause in United States v. Miggins

for a search warrant for co-defendants’ shared residence

where one defendant had prior cocaine charges, that

defendant had various aliases and the residence’s address

written on a note in his pocket, and both defendants

were participants in a controlled delivery of cocaine and

admitted to being gang members. 302 F.3d 384, 393–

94 (6th Cir. 2002). We similarly held that an affidavit

established probable cause where the affidavit stated that

the defendant was likely a drug dealer, and, along with

other corroborating evidence about his drug purchases,

that officers had recorded 38 conversations between a

reliable confidential informant and a middleman buying

large quantities of drugs on the defendant’s behalf. United

States v. Gunter, 551 F.3d 472, 476–77, 480–82 (6th Cir.

2009).

Controlled buys of drugs at a defendant’s residence

have been especially critical in establishing a sufficient

nexus between the residence and evidence sought by law

enforcement. See Jones, 159 F.3d at 974–75 (finding

a sufficient nexus to search the defendant’s residence

where a confidential informant made drug purchases from

the defendant, was at the defendant’s residence during

monitored drug transactions, and observed the defendant

in possession of cocaine); United States v. Ellison, 632

F.3d 347, 349 (6th Cir. 2011) (finding a sufficient nexus

to search the defendant’s residence where a confidential

informant had “observed someone come out of [the

defendant’s] residence, engage in a drug transaction, and

then return into the residence”).

*6 But a defendant’s prior drug convictions and evidence

of recent drug activity are not always sufficient to find

probable cause to search a defendant’s residence. In

United States v. White, we affirmed the district court’s

determination of no probable cause to search a residence

where the affidavit stated that the officers received an

anonymous tip that the defendant sold drugs at that

residence, officers conducted and recorded a controlled

buy from the defendant in the driveway of the residence,

a police dog alerted to the odor of narcotics in the

defendant’s vehicle, and the defendant had numerous

prior drug possession convictions. 874 F.3d 490, 494–95

(6th Cir. 2017). We have also held that an affidavit did

not establish a defendant was a “known drug dealer”

when it merely stated that he had recently been arrested

in a suspected drug deal and had one decade-old drug

conspiracy conviction. Brown, 828 F.3d at 378–80, 382–

84. Without evidence of the defendant’s involvement in

an ongoing drug conspiracy and without any assertion

that the defendant used his home to distribute or store

drugs, a “more direct connection was required” to support

a search warrant of Brown’s residence. Id. at 383. A

nexus to a defendant’s residence does not exist, moreover,

if controlled buys occurred at the defendant’s prior

residence, but not the one officers are seeking to search.

Frazier, 423 F.3d at 532. Thus, an affidavit supporting a

narcotics search warrant for a residence does not establish

a nexus between a defendant’s recent drug activity and

his residence where the affiant did not provide direct

knowledge that the defendant has either sold drugs or

used that particular residence for selling drugs. See, e.g.,

Pet. App. 5a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

United States v. Higgins, 557 F.3d 381, 390 (6th Cir. 2009)

(finding insufficient nexus where the affidavit provided

“scant information” about a confidential informant’s

reliability and police had little corroborating evidence);

United States v. McPhearson, 469 F.3d 518, 524–25 (6th

Cir. 2006) (finding insufficient nexus where the affidavit

merely stated that defendant was arrested with drugs on

his person outside his residence); Carpenter, 360 F.3d

at 593–95 (finding insufficient nexus when the affidavit

stated police observed marijuana plants near a residence

but did not provide further detail about the activities of

the residents).

Fitzgerald asserts that the affidavit supporting the search

warrant of his residence does not establish his status

as a drug dealer or a proper nexus between his alleged

drug activity and that address. The affidavit does not

reference Fitzgerald’s criminal history; in fact, he has

no prior arrests, charges, or convictions. Nor does the

affidavit assert that NOLETF officers or the confidential

informant ever observed Fitzgerald in possession of

drugs, delivering drugs, or receiving drugs, despite a

year of investigation. The affidavit also does not include

any claims of firsthand knowledge that Fitzgerald was

engaged in the purchase or sale of drugs.

Even if the affidavit had established Fitzgerald was a

known drug dealer, in a year of listening to Fitzgerald’s

phone conversations, tracking Walker’s location, and

attempting to surveil a delivery between Walker and

Fitzgerald, NOLETF officers did not observe any drug

activity at or near Fitzgerald’s residence. By contrast,

officers conducted video surveillance of Anderson’s

residence and witnessed Walker and Anderson handing

off a Pelican case at that location. The affidavit, though

62 pages long, mentions Fitzgerald’s address in only

six paragraphs, primarily to establish that Fitzgerald

resided there. It contains only two potentially suspicious

references to the residence, neither of which “present

sufficient facts demonstrating why the police officer

expects to find evidence in the residence rather than

in some other place.” Brown, 828 F.3d at 382. First,

the affidavit discusses a tapped phone conversation in

which Fitzgerald told Walker that he left an item at

his home. The affiant believed the forgotten item was

the burner phone Fitzgerald used to coordinate drug

drop-offs with Walker. However, this oblique reference

to the residence does not demonstrate that drug-related

activity occurred there. Cf. Jones, 159 F.3d at 974–75;

Ellison, 632 F.3d at 349. Second, the district court may

have misinterpreted one assertion in the affidavit when

the court denied Fitzgerald’s motion to suppress. The

affidavit states twice that on February 20, 2015, officers

observed Fitzgerald leave his workplace at FedEx, enter

his personal vehicle, drive to “several locations,” enter

and exit those locations, and drive back to his residence,

where officers ceased surveillance. The court wrote that

those paragraphs describe Fitzgerald returning to the

address “after a suspected drug drop.” (R. 49, PageID

255.) However, there is no information in the affidavit

supporting the conclusion that a suspected drug drop took

place on February 20, 2015 at any location.

Our precedent does not support the district court’s

conclusion that the affiant’s “experience that evidence

of drug activity can often be found at the drug dealer’s

residence, alone, is sufficient to establish a nexus to search

the residence.” (R. 49, PageID 259.) See Frazier, 423

F.3d at 533. It is not enough for the affiant to assert

his knowledge that drug traffickers often use their homes

as “stash houses.” There must be a separate “substantial

basis for finding that the affidavit established probable

cause to believe that the evidence would be found at

the place cited.” United States v. Rodriguez-Suazo, 346

F.3d 637, 643 (6th Cir. 2003) (quoting United States v.

Davidson, 936 F.2d 856, 859 (6th Cir. 1991) (emphasis

added). In each case cited by the district court in its denial

of Fitzgerald’s motion to suppress, the search warrant

affidavit contained observable evidence of defendant’s

drug activity in addition to the affiant’s experience with

drug investigation. See United States v. Goward, 188

F. App'x 355 (6th Cir. 2006) (where defendants also

participated in a controlled buy of narcotics and in other

drug transactions); Miggins, 302 F.3d at 388, 394 (same);

United States v. Blair, 214 F.3d 690, 696–98 (6th Cir.

2000) (where officers first executed a warrant for financial

records in the residence of owners of a prostitution ring

based on the affidavit of an IRS agent, observed drugs in

plain view, then applied for a narcotics search warrant).

Our precedent is summarized in Frazier, which held that

Miggins, Blair, and other cases do not “support[ ] the

proposition that the defendant’s status as a drug dealer,

standing alone, gives rise to a fair probability that drugs

will be found in his home.” 423 F.3d at 533.

*7 The affidavit does not assert that Fitzgerald had a

criminal history, provide firsthand evidence that he ever

delivered or sold drugs, or demonstrate that Fitzgerald’s

Pet. App. 6a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

residence was used as a “stash house” or played any role in

the alleged drug conspiracy, other than the single reference

to Fitzgerald’s secondary cell phone. A magistrate judge

must have a “substantial basis” for finding probable cause

exists, Gates , 462 U.S. at 238–39, 103 S.Ct. 2317 (quoting

Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4

L.Ed.2d 697 (1960), and we must remain mindful that “

‘[a]t the very core’ of the Fourth Amendment ‘stands the

right of a man to retreat into his own home and there be

free from unreasonable governmental intrusion.’ ” Kyllo

v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150

L.Ed.2d 94 (2001) (quoting Silverman v. United States,

365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)

). Accordingly, we hold that the nexus requirement was

not satisfied, and probable cause did not exist to issue the

search warrant for Fitzgerald’s residence.

2. Good Faith Exception

The Government argues that even if the affidavit did

not establish a sufficient nexus to Fitzgerald’s residence,

suppression of the evidence obtained in the search would

be improper under the “good faith” exception established

in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405,

82 L.Ed.2d 677 (1984). The exclusionary rule precludes

the use of evidence obtained in violation of the Fourth

Amendment in criminal proceedings against the victim

of the illegal search or seizure, Illinois v. Krull, 480 U.S.

340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), but

if the evidence was “obtained in objectively reasonable

reliance” on the invalidated search warrant, it should not

be suppressed, Leon, 468 U.S. at 922, 104 S.Ct. 3405.

The Leon good faith exception specifies that the affidavit

must contain only a “minimally sufficient nexus between

the illegal activity and the place to be searched....”

Carpenter, 360 F.3d at 596; see also McPhearson, 469

F.3d at 526–27. That is a “less demanding showing than

the ‘substantial basis’ threshold required to prove the

existence of probable cause.” Frazier, 423 F.3d at 536

(citing Carpenter, 360 F.3d at 595). An officer relying on a

search warrant does not act in objectively reasonable good

faith when: (1) the magistrate was misled by information

in the affidavit that the affiant either knew was false or

was reckless as to its falsity; (2) the magistrate wholly

abandoned her judicial role; (3) the warrant was so lacking

in indicia of probable cause that official belief in its

existence is unreasonable; or (4) the officer’s reliance

on the warrant was otherwise not in good faith or

objectively unreasonable, such as where the warrant is

facially deficient. United States v. Laughton, 409 F.3d

744, 748 (6th Cir. 2005) (citing Leon, 468 U.S. at 914–

23, 104 S.Ct. 3405). The affidavit cannot be “bare bones”

and merely “state[ ] suspicions, beliefs, or conclusions,

without providing some underlying factual circumstances

regarding veracity, reliability, and basis of knowledge.”

McPhearson, 469 F.3d at 526 (citing United States v.

Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996) ). “The relevant

question is whether a reasonably well trained officer

would have known that the search was illegal despite the

magistrate’s authorization.” United States v. McCraven,

401 F.3d 693, 698 (6th Cir. 2005) (citation and internal

quotation marks omitted). Lack of good faith reliance on

the affidavit may also exist “when evidence in the affidavit

connecting the crime to the residence is ‘so vague as to

be conclusory or meaningless.’ ” Frazier, 423 F.3d at 536

(quoting Carpenter, 360 F.3d at 596). The standard of

reasonableness is an objective one and “does not turn on

the subjective good faith of individual officers.” Krull, 480

U.S. at 355, 107 S.Ct. 1160 (citing Leon, 468 U.S. at 919

n.20, 104 S.Ct. 3405).

Though the affidavit supporting the search warrant

for Fitzgerald’s residence did not provide a sufficient

nexus between the place to be searched and the items

sought, it was not a bare-bones affidavit. The affidavit

thoroughly described a year-long investigation into a

wide-ranging drug conspiracy. We found an officer could

not reasonably rely on a “bare bones” search warrant

affidavit in Laughton, where the four-paragraph affidavit

solely described one informant’s controlled buy from the

defendant, 409 F.3d at 748–51, and in Weaver, where the

officer did not attempt to corroborate an informant’s tip

and the affidavit had “little firsthand information and

no personal observations” of the defendant, 99 F.3d at

1380. Similarly, when an affidavit alleged merely that

a defendant had drugs on his person when he was

arrested outside his home, we found that an officer

could not reasonably believe there was probable cause

to search the residence for evidence of drug dealing

on that arrest alone. McPhearson, 469 F.3d at 526–

27. In contrast, here, the 62-page affidavit contains

evidence of Fitzgerald’s involvement in ongoing drug

activity based on confidential informant reports and a

year of wiretapped conversations and other surveillance of

suspected co-conspirators. For example, the confidential

informant claimed to speak regularly with Fitzgerald’s

Pet. App. 7a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

half-sister, co-defendant Anderson, about the conspiracy

and specifically described Fitzgerald’s role as the FedEx

deliverer. Magistrate judges authorized wiretaps on

Fitzgerald’s and Walker’s cell phones and a tracker on

Walker’s vehicle. Experienced officers interpreted the

suspects’ cryptic phone and text conversations to refer to

drug deliveries and payments. On days tapped phone calls

led officers to believe Fitzgerald and Walker planned to

meet, surveillance of Anderson’s residence showed Walker

arriving with Pelican cases.

*8 There is, moreover, no evidence in the record that

officers did not rely on this warrant in good faith or that

they applied for the warrant knowing the information

within it was false. Similarly, we have no evidence that

the magistrate “wholly abandoned [her] judicial role.”

Leon, 468 U.S. at 923, 104 S.Ct. 3405. The warrant is

not “so lacking in indicia of probable cause that a belief

in its existence is objectively unreasonable.” Laughton,

409 F.3d at 748. In light of the entire record, we do not

find it objectively unreasonable for an officer to believe

that the affidavit established probable cause to search

Fitzgerald’s residence. We therefore conclude that the

good faith exception applies and affirm the district court’s

denial of Fitzgerald’s motion to suppress.

B. Sufficiency of the Evidence (Fitzgerald and

Anderson)

“We review de novo the district court’s denial of a

motion for acquittal based on sufficiency of the evidence.”

United States v. Blanchard, 618 F.3d 562, 574 (6th Cir.

2010) (citation omitted). When reviewing an insufficient

evidence claim on appeal from a jury verdict, we ask

“whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Washington,

715 F.3d 975, 979 (6th Cir. 2013) (quoting Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d

560 (1979) ). “Circumstantial evidence alone is sufficient

to sustain a conviction[,] and such evidence need not

remove every reasonable hypothesis except that of guilt.”

United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005)

(quoting United States v. Spearman, 186 F.3d 743, 745

(6th Cir. 1999). Moreover, “we do not weigh the evidence,

assess the credibility of the witnesses, or substitute our

judgment for that of the jury.” United States v. Wright,

16 F.3d 1429, 1440 (6th Cir. 1994). A defendant bears “a

very heavy burden” to show the government’s evidence

is insufficient. United States v. Kernell, 667 F.3d 746, 756

(6th Cir. 2012) (quoting United States v. Jones, 641 F.3d

706, 710 (6th Cir. 2011).

1. Fitzgerald

Fitzgerald challenges the sufficiency of the evidence for

two convictions: Count One, conspiring to possess with

intent to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841 (b)(1)(a);

and Count Two, knowingly and intentionally distributing

approximately one kilogram of cocaine, in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B).

a. Conspiracy

“To sustain a conviction for conspiracy under 21 U.S.C. §

846, the government must have proved: (1) an agreement

to violate drug laws, in this case 21 U.S.C. § 841; (2)

knowledge and intent to join the conspiracy; and (3)

participation in the conspiracy.” United States v. Sliwo,

620 F.3d 630, 633 (6th Cir. 2010) (citation omitted).

An agreement can be established through circumstantial

evidence or a “tacit or material understanding among

parties to a conspiracy.” United States v. Beals, 698 F.3d

248, 259 (6th Cir. 2012). “Testimony by co-conspirators

alone can be sufficient to prove the existence of a

conspiracy.” United States v. Soto, 794 F.3d 635, 658

(6th Cir. 2015) (citation omitted); see also Spearman, 186

F.3d at 746. But a co-conspirator’s statements about a

defendant “should be viewed with ‘special suspicion’ ” due

to the co-conspirator’s motivations. United States v. Hunt,

487 F.3d 347, 352 (6th Cir. 2007) (quoting United States

v. Gomez-Lemos, 939 F.2d 326, 330 (6th Cir.1991) ). The

finder of fact should not draw unreasonable inferences,

United States v. Abner, 35 F.3d 251, 255 (6th Cir. 1994),

and should recall the Supreme Court’s “long-standing

admonition that ‘charges of conspiracy are not to be made

out by piling inference upon inference ....’ ” United States

v. Swafford, 512 F.3d 833, 843 (6th Cir. 2008) (quoting

Direct Sales Co. v. United States, 319 U.S. 703, 711, 63

S.Ct. 1265, 87 L.Ed. 1674 (1943) ). Ultimately, “[a]ttacks

on witness credibility are simple challenges to the quality

of the government’s evidence and not the sufficiency of the

evidence.” United States v. Sanchez, 928 F.2d 1450, 1457

(6th Cir. 1991), (quoting United States v. Adamo, 742 F.2d

927, 932 (6th Cir. 1984) ), abrogated on other grounds by

Pet. App. 8a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

Buford v. United States, 532 U.S. 59, 121 S.Ct. 1276, 149

L.Ed.2d 197 (2001).

*9 Fitzgerald argues that Walker’s self-interested

statements about the defendants’ roles in the conspiracy

are unreliable, and he challenges the sufficiency of

the circumstantial evidence corroborating Walker’s

testimony, particularly the lack of proof that Fitzgerald

knew the FedEx shipments contained cocaine. While

Fitzgerald is correct that authorities never seized

any drugs, witnessed hand-to-hand sales, or obtained

an admission from Fitzgerald, Walker’s testimony is

sufficient to support Fitzgerald’s conviction. See Soto, 794

F.3d at 658. Walker testified that when he first approached

Fitzgerald about shipping marijuana through FedEx,

Fitzgerald willingly helped Walker use the best methods to

label and package the shipments to evade detection, such

as by using a return address based in a state not known as

a drug-source state. According to Walker, when he lost his

source of marijuana in Arizona, he told Fitzgerald he was

“going to start playing with the other work” and began

paying Fitzgerald $2,000 per case delivered, a significant

change from his previous payment of $50 per pound of

marijuana. Walker also testified that Fitzgerald helped

him remove cocaine-trafficking paraphernalia from the

apartment leased in Fitzgerald’s name in Aurora, Ohio

where Walker’s cousin attempted suicide. Finally, Walker

claimed that he sent shipments nearly every week for at

least one year, usually containing one to two kilograms of

cocaine per case, and that he still owed Fitzgerald tens of

thousands of dollars. That testimony permits the inference

that Fitzgerald knew at least five kilograms of cocaine

were involved in the conspiracy.

Moreover, at trial, the jury saw substantial corroborating

evidence. First, a FedEx security investigator and

NOLETF officers presented FedEx records for a business

account under the false name Elizabeth Pankratz, of

the fictional North Dakota company Praxair Medical

Supplies. That business account sent 38 packages from

FedEx stores in Southern California to various locations

in Northern Ohio, matching Walker’s testimony that

he created and used the Elizabeth Pankratz account

to send packages from his cocaine suppliers in Los

Angeles. Second, NOLETF’s wiretapped conversations

and vehicle-tracking information show Walker and

Fitzgerald deciding where to meet to hand off drug

shipments at times and locations corresponding to

delivery times and locations in the FedEx records. Third,

another FedEx employee, Grzybowski—a name and

person Walker denied knowing—testified that Fitzgerald

gave her a cell phone and paid her hundreds of dollars

to run detailed scans of Walker’s packages and, on

two occasions, to pull packages before delivery. Fourth,

the FedEx records showed that of the 38 known

packages, Fitzgerald personally delivered seven packages,

and various testimony showed that he paid Smith and

Grzybowski to deliver or pull the remaining 31 packages.

Finally, during the search of Fitzgerald’s residence and

storage locker, officers found Pelican cases, suitcases

with torn backings, and over $20,000 in cash. Though

Fitzgerald claims that the cash and his regular large bank

deposits were legally earned through his roles managing

and owning bars, the Government “need not remove every

reasonable hypothesis except that of guilt” to defeat a

sufficiency-of-the-evidence challenge. Barnett, 398 F.3d at

522.

This testimony and evidence could lead a rational juror

to conclude that Fitzgerald entered an agreement to ship

drugs, participated in shipping drugs, knew those drugs

were cocaine, and knew that he was shipping at least

five kilograms of cocaine during the conspiracy. Thus,

sufficient evidence established an agreement to violate

drug laws, knowledge and intent to join the conspiracy,

and participation in the conspiracy. See Sliwo, 620 F.3d at

633. We affirm Fitzgerald’s conviction on Count One.

b. Cocaine Distribution

To convict for cocaine distribution under 21 U.S.C. §

841(a), the government must prove that a defendant: (1)

knowingly or intentionally distributed cocaine, and (2) at

the time of such distribution, the defendant knew that the

substance was cocaine. United States v. Colon, 268 F.3d

367, 376 (6th Cir. 2001).

Fitzgerald attacks his distribution conviction on the same

grounds as the conspiracy conviction, claiming Walker

was not a credible source and the Government did

not adequately corroborate Walker’s testimony. Again,

his challenge fails because “the quality of the evidence

is a factual matter for the jury to evaluate.” United

States v. Gibbs, 182 F.3d 408, 424 (6th Cir. 1999).

Walker testified that on January 31, 2015, Fitzgerald gave

him one Pelican case containing one to two kilograms

of cocaine. Evidence shows Fitzgerald knew that the

Pet. App. 9a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

shipments contained cocaine, not marijuana. Walker also

helped decode his recorded phone conversations and texts

with Fitzgerald discussing where to meet that day along

Fitzgerald’s delivery route. Though police did not witness

the transaction, FedEx records show Fitzgerald delivered

a package from the Elizabeth Pankratz account that

morning, and location tracking of Walker’s vehicle shows

Walker driving to the agreed-upon spot at the time of

package delivery. The evidence in the record is sufficient

for a rational juror to conclude that Fitzgerald knowingly

distributed a substance he knew to be cocaine. We affirm

Fitzgerald’s conviction on Count Two.

2. Anderson

*10 Anderson argues that insufficient evidence

supported each of her three convictions: Count One,

conspiring to possess with intent to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. §§

846, 841(a)(1), and 841 (b)(1)(a); Count Four, managing

premises for the purpose of manufacturing, storing,

distributing, and using cocaine in violation of 21 U.S.C.

§ 856(a)(2); and Count Six, using a telephone to facilitate

the conspiracy in violation of 21 U.S.C. § 843(b).

a. Conspiracy

Anderson, like Fitzgerald, bases her challenge on

Walker’s reliability, but that is a factual and credibility

determination entrusted to the jury. See Washington,

715 F.3d at 981. Anderson argues that no cocaine or

money was found through surveillance or search of

her home, and circumstantial evidence is not enough

to show she knowingly participated in a conspiracy

to distribute cocaine. She is incorrect; circumstantial

evidence can be enough. See Barnett, 398 F.3d at 522.

Walker, moreover, testified that he brought cocaine to

Anderson’s house and concealed drugs and money there.

Officers observed Walker entering Anderson’s house with

a Pelican case on three occasions. Walker also testified

that Anderson would follow Walker in her car to help keep

law enforcement officers from pulling Walker over with

drugs in his car. A search of Anderson’s residence found

Pelican cases and digital scales, corroborating Walker’s

account that he used Anderson’s home to weigh and

divide cocaine into smaller quantities. Tapped phone

conversations also show Anderson knew Walker regularly

used her residence and that he owed Fitzgerald up to

$31,000, a sum indicating the scope of the cocaine sales.

The evidence is sufficient to show Anderson knew of

the conspiracy, intended to join the conspiracy, and

participated in the conspiracy. See Sliwo, 620 F.3d at 633.

We affirm Anderson’s conviction on Count One.

b. Maintaining Drug Premises

To establish a violation of 21 U.S.C. § 856(a)(2), the

government must prove that a defendant did “manage

or control any place” and “knowingly and intentionally

rent, lease, profit from, or make available for use, with

or without compensation, the place for the purpose of

unlawfully manufacturing, storing, distributing, or using

a controlled substance.” 21 U.S.C. § 856(a)(2) (2012).

The Government presented evidence that Anderson

owned and occupied the residence. Her $1,000 payments

from Walker and recorded conversations with Fitzgerald

and Walker indicate her knowledge that she was aiding

the distribution of cocaine. Walker testified that he

broke kilograms of cocaine into smaller quantities for

distribution at Anderson’s house, and the search of the

residence found scales that could be used for weighing

drugs. Sufficient evidence exists for Anderson’s conviction

under § 846(a)(2). See United States v. Parrett, 552 F.

App'x 462, 464 (6th Cir. 2014). We therefore affirm

Anderson’s conviction on Count Four.

c. Using a Telephone to Facilitate

a Federal Narcotics Crime

A conviction under 21 U.S.C. § 843(b) requires the

government to establish that the defendant “(1) knowingly

and intentionally used a communications facility (2) to

facilitate the commission of a [federal] narcotics crime.”

United States v. Burns, 298 F.3d 523, 538 (6th Cir. 2002)

(internal citations omitted).

According to information obtained through NOLETF

surveillance, Walker called Anderson at 9:26 a.m. on

January 31, 2015. She picked up the phone, and he

told her he was at her house. Walker confirmed that

on that date, he brought a Pelican case of cocaine to

Anderson’s house and divided the drugs into smaller

quantities for distribution; the jury was entitled to find

Pet. App. 10a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

his testimony reliable. See Sanchez, 928 F.2d at 1457.

Sufficient evidence thus existed in the record for the jury

to find Anderson guilty of knowingly and intentionally

using a communications facility to facilitate the drug

conspiracy. We affirm Anderson’s conviction on Count

Six.

the court should “err on the side of caution,” Sandridge,

385 F.3d at 1037 (quoting Owusu, 199 F.3d at 338), and

must “conclude the defendant is more likely than not

actually responsible for a quantity greater than or equal

to the quantity for which the defendant is being held

responsible,” Jeross, 521 F.3d at 570 (quoting Walton, 908

F.2d at 1302).

C. Determination of Drug Quantity (Fitzgerald, Smith,

and Anderson)

*11 Fitzgerald and Smith challenge the district court’s

finding for sentencing purposes that their roles in the

conspiracy involved between 15 and 50 kilograms of

cocaine. Anderson also challenges the district court’s

finding that her role in the conspiracy involved between 5

and 15 kilograms of cocaine.

The district court relied on Walker’s testimony and the

FedEx records to calculate the amount of drugs involved

in the conspiracy. Walker testified that each package

he shipped from California via FedEx usually contained

two kilograms of cocaine, though he acknowledged he

sent cases with no drugs in them. He claimed he sent

the drug packages almost every week for at least a year

from three or four different accounts, though only the

Elizabeth Pankratz account was identified. The FedEx

records for that account show that Walker sent 38

packages from California, all scanned by Fitzgerald,

Smith, or Grzybowski. The court properly used caution

by assuming each shipment contained one kilogram of

cocaine, not two, therefore calculating that at least 38

kilograms of cocaine were shipped in the 38 containers.

The resultant drug quantity for sentencing, between 15

and 50 kilograms of cocaine, is not clearly erroneous

based on the testimonial and corroborating evidence in the

record.

We review a district court’s factual finding of drug

quantity for clear error. United States v. Jeross, 521 F.3d

562, 570 (6th Cir.2008).

1. Fitzgerald and Smith

Sentencing in drug crimes requires the district court

to determine the quantity of drugs attributable to the

defendant to establish a base offense level. USSG §

2D1.1(c). Under the Guidelines, when a defendant is

part of a “jointly undertaken criminal activity” such

as a drug conspiracy, “the defendant is accountable ...

for all quantities of contraband with which he was

directly involved and ... [that] were reasonably foreseeable

in connection with that criminal activity.” Id. § 1B1.3

comment. (n.3).

If the exact amount of drugs involved in a conviction

cannot be determined, “an estimate will suffice, but ...

a preponderance of the evidence must support the

estimate.” Jeross, 521 F.3d at 570 (quoting United States v.

Walton, 908 F.2d 1289, 1302 (6th Cir. 1990) ). The estimate

may be based on physical evidence or on testimonial

evidence, id.; United States v. Swanberg, 370 F.3d 622, 625

(6th Cir. 2004), but that evidence “must have a minimal

level of reliability beyond mere allegation,” United States

v. Sandridge, 385 F.3d 1032, 1037 (6th Cir. 2004) (quoting

United States v. Owusu, 199 F.3d 329, 338 (6th Cir. 2000)

). Corroborating evidence can provide an “indicia of

reliability” to co-conspirator testimony. Hunt, 487 F.3d

at 352 (citing USSG § 6A1.3(a) ). In making its estimate,

Fitzgerald claims that Walker used “puffery” and

exaggerated the quantities of cocaine in each container. It

is true that no FedEx security officers or law enforcement

officers were able to seize a container and prove that

the containers contained cocaine. The district court’s

determination of the credibility of a co-conspirator’s

testimony, however, receives “great deference,” United

States v. Esteppe, 483 F.3d 447, 452 (6th Cir. 2007),

and Walker’s testimony and the FedEx records indicate

Fitzgerald and Smith were involved in a conspiracy to

ship more than 38 kilograms of cocaine. The district court

need only estimate the quantity involved based on the

“preponderance of the evidence.” Walton, 908 F.2d at

1302 (6th Cir. 1990). In finding that at least 15 kilograms

of cocaine were involved, the court did not commit clear

error, and it did not err in calculating Fitzgerald’s and

Smith’s Guidelines ranges accordingly.

2. Anderson

Pet. App. 11a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

*12 Anderson also challenges the district court’s

determination of the quantity of drugs attributable to

her role in the conspiracy. The court found insufficient

evidence that all 38 shipments were reasonably foreseeable

to Anderson and looked instead at times when Walker

brought cocaine shipments to Anderson’s house. Walker’s

testimony and police surveillance described three such

instances, and Walker testified that each case contained

two kilograms of cocaine. This evidence is sufficient to

show Walker brought at least six kilograms of cocaine

to Walker’s house. The court also noted that tapped

phone conversations between Anderson and Fitzgerald

indicate that she knew the conspiracy involved large sums

of money and large quantities of drugs. Though the court

agreed with the Government that Anderson could have

reasonably foreseen that over fifteen kilograms of cocaine

were involved in the conspiracy, the court instead elected

to find that the drug quantity was five to fifteen kilograms.

The calculation is not, as Anderson alleges, “arbitrary and

unreasonable.” We do not find clear error.

D. Obstruction of Justice (Fitzgerald)

We review a district court’s decision to impose an

obstruction of justice adjustment under Guideline § 3C1.1

in three steps: (1) reviewing the district court’s factual

findings for clear error; (2) reviewing the district court’s

conclusion that a given set of facts constitutes obstruction

of justice de novo as a mixed question of law and fact;

and (3) reviewing the two-level mandatory adjustment for

obstruction of justice de novo. United States v. Middleton,

246 F.3d 825, 846 (6th Cir. 2001). “In reviewing the § 3C1.1

enhancement, we evaluate [the] defendant’s testimony and

statements in a light most favorable to the defendant.”

United States v. Thomas, 272 F. App'x 479, 487 (6th Cir.

2008) (quoting United States v. Head, 927 F.2d 1361, 1372

(6th Cir. 1991) ).

1. Obstruction of Justice

To impose an obstruction of justice enhancement for

perjury, the district court must find “that the defendant

testified falsely ‘concerning a material matter with the

willful intent to provide false testimony, rather than as

a result of confusion, mistake, or faulty memory.’ ”

United States v. Chance, 306 F.3d 356, 390 (6th Cir.

2002) (quoting United States v. Dunnigan, 507 U.S. 87,

94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) ). The notes

to the Guidelines provide that § 3C1.1 “is not intended

to punish a defendant for the exercise of a constitutional

right” and that “not all inaccurate testimony or statements

necessarily reflect a willful attempt to obstruct justice.”

United States v. Bazazpour, 690 F.3d 796, 806 (6th Cir.

2012) (citing USSG § 3C1.1, comment. (n.2) ). Thus,

the court must identify “those particular portions of the

defendant’s testimony that it considers to be perjurious,”

United States v. Mise, 240 F.3d 527, 531 (6th Cir. 2001)

(quoting Dunnigan, 507 U.S. at 94, 113 S.Ct. 1111), and

either make specific findings as to each element of perjury

or make a finding that “encompasses all of the factual

predicates for a finding of perjury.” Id. (citation omitted).

The district court made each required finding by

identifying a specific portion of Fitzgerald’s testimony as

false and noting: “The testimony did go to a material

matter that related to Count 2 of the indictment. It was

made under oath here in court. And the Court finds

that there was a willful intent to provide false testimony

regarding the matter.” (R. 160, PageID 2758-59.) In the

relevant testimony, Fitzgerald repeatedly denies meeting

Walker on January 31, 2015, even when the Government

confronted Fitzgerald with phone calls between Fitzgerald

and Walker planning a meeting and with Walker’s

testimony that they did meet to hand off a package of

cocaine. While it would have been preferable for the

district court to better describe why the perjurious portion

of Fitzgerald’s testimony was material and why the court

believed his testimony was willful, the court did not clearly

err in so finding. Fitzgerald’s testimony contradicted his

co-conspirator’s testimony and corroborating evidence,

and the record supports the finding that Fitzgerald

committed perjury. We affirm Fitzgerald’s two-level

enhancement for obstruction of justice.

E. Substantive Unreasonableness (Fitzgerald and

Anderson)

*13 We review sentences imposed by a district court

for abuse of discretion. Gall v. United States, 552 U.S.

38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A district

court abuses its discretion if it imposes a sentence that is

procedurally or substantively unreasonable. United States

v. Walters, 775 F.3d 778, 781 (6th Cir. 2015); United States

v. Massey, 663 F.3d 852, 856 (6th Cir. 2011).

Pet. App. 12a

United States v. Fitzgerald, --- Fed.Appx. ---- (2018)

1. Sentencing Disparity

A sentence is substantively unreasonable “when the

district court selects a sentence arbitrarily, bases the

sentence on impermissible factors, fails to consider

relevant sentencing factors, or gives an unreasonable

amount of weight to any pertinent factor.” United States

v. Brinley, 684 F.3d 629, 636 (6th Cir. 2012) (citation

omitted). In reviewing for substantive reasonableness,

this court evaluates “the totality of the circumstances,

including the extent of any variance from the Guidelines

range.” United States v. Bolds, 511 F.3d 568, 581 (6th

Cir. 2007) (quoting Gall, 552 U.S. at 51, 128 S.Ct.

586). “A sentence that falls within a properly calculated

guideline range is afforded a rebuttable presumption of

reasonableness, and it is incumbent upon the defendant

to demonstrate that his sentence is unreasonable.” United

States v. Evers, 669 F.3d 645, 661 (6th Cir. 2012) (quoting

United States v. Brogdon, 503 F.3d 555, 559 (6th Cir. 2007)

Under 18 U.S.C. § 3553(a)(6), the district court can

consider “national disparities among the many defendants

with similar criminal backgrounds convicted of similar

conduct,” but the court generally is not required to

consider disparities between individual co-defendants’

sentences. United States v. Simmons, 501 F.3d 620, 623

(6th Cir. 2007). A district court, however, “may exercise

his or her discretion and determine a defendant’s sentence

in light of a co-defendant’s sentence.” Id. at 624 (citing

United States v. Nelson, 918 F.2d 1268, 1272–73 (6th Cir.

1990) ).

While Walker was not a co-defendant in their trial,

Fitzgerald and Anderson claim that their sentences

are substantively unreasonable because they are longer

than that of Walker, the leader of the conspiracy. In

sentencing all three defendants, the district court used as

its “starting point and the initial benchmark” the correct

calculation of the applicable Guidelines range, Gall, 552

End of Document

U.S. at 49, 128 S.Ct. 586, then specifically addressed

why Walker’s sentence was shorter, at 57 months, than

either Fitzgerald’s or Anderson’s. The court noted that

Walker received a three-level reduction for acceptance of

responsibility and additional reductions for cooperation,

though he received a leadership enhancement. Fitzgerald

received two enhancements: one for obstruction of justice

and another for his supervisory role in the conspiracy.

Anderson received one enhancement for maintaining

a drug premise. The court specifically emphasized

each defendant’s individual culpability, particularly

Fitzgerald’s as the critical conspirator who provided

access to FedEx and permitted the conspiracy to go

undetected for years. The court took each defendant’s

personal characteristics and § 3553(a) factors into account

and sentenced Anderson to a below-Guidelines sentence

of 108 months’ imprisonment and Fitzgerald to a sentence

at the bottom of the Guidelines range of 188 months’

imprisonment. Fitzgerald has not shown that his withinGuidelines sentence is unreasonable or that the district

court abused its discretion. The burden for Anderson to

show unreasonableness is “even more demanding,” as her

sentence was below the properly calculated Guidelines

range, United States v. Curry, 536 F.3d 571, 573 (6th

Cir. 2008), and she likewise has not met it. While

we acknowledge Fitzgerald’s and Anderson’s concerns

regarding fairness and justice, we cannot conclude that

their sentences are unreasonable. We therefore affirm

Fitzgerald’s and Anderson’s sentences.

III. CONCLUSION

*14 For the foregoing reasons, we AFFIRM the district

court’s denial of Fitzgerald’s motion to suppress and

AFFIRM each defendant’s convictions and sentences.

All Citations

--- Fed.Appx. ----, 2018 WL 5734697

Pet. App. 13a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.