Petition for Writ of Certiorari — Eric Lavell Minter, Petitioner v. United States

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Sixth Circuit

(August 31, 2023) . . . . . . . . . . . . . App. 1

Appendix B Amended Judgment in a Criminal

Case in the United States District

Court for the Eastern District of

Kentucky

(July 12, 2022). . . . . . . . . . . . . . . App. 17

Appendix C Order Denying Petition for Rehearing

in the United States Court of Appeals

for the Sixth Circuit

(September 26, 2023) . . . . . . . . . App. 32

Appendix D Sentencing Guidelines . . . . . . . . App. 33

3B1.1 . . . . . . . . . . . . . . . . . . . . . . App. 33

2D1.1(b)(1). . . . . . . . . . . . . . . . . . App. 36

App. 1

APPENDIX A

RECOMMENDED FOR PUBLICATION

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

File Name: 23a0204p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 22-5600

[Filed August 31, 2023]

______________________________

UNITED STATES OF AMERICA,

)

Plaintiff-Appellee,

)

)

v.

)

)

ERIC LAVELL MINTER,

)

Defendant-Appellant.

)

_____________________________ )

Appeal from the United States District Court for the

Eastern District of Kentucky at Ashland.

No. 0:17-cr-00010-5—David L. Bunning,

District Judge.

Argued: August 2, 2023

Decided and Filed: August 31, 2023

Before: STRANCH, BUSH, and MURPHY,

Circuit Judges.

_________________

App. 2

COUNSEL

ARGUED: Maryam Assar, CASE WESTERN

RESERVE UNIVERSITY, Cleveland, Ohio, for

Appellant. John Patrick Grant, UNITED STATES

ATTORNEY’S OFFICE, Lexington, Kentucky, for

Appellee. ON BRIEF: Maryam Assar, Andrew S.

Pollis, CASE WESTERN RESERVE UNIVERSITY,

Cleveland, Ohio, for Appellant. John Patrick Grant,

Charles P. Wisdom, Jr., UNITED STATES

ATTORNEY’S OFFICE, Lexington, Kentucky, for

Appellee.

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. Eric Minter pleaded

guilty to conspiracy to distribute heroin. He appeals the

district court’s enhancements of his sentence for acting

as a manager or supervisor of the conspiracy and for

constructive possession of a firearm. For reasons

discussed below, we hold that both enhancements were

proper and AFFIRM the district court’s sentence.

I.

On August 28, 2017, the Ohio State Highway Patrol

seized four vacuum-sealed packages during a routine

traffic stop of two drug couriers, Kimberly Moore and

James Saunders. Field testing revealed the packages

contained around 431 grams of heroin. Following the

positive field test results, officers arrested the couriers.

They told police they had planned to deliver their load

to Minter in Huntington, West Virginia.

App. 3

Instead, law enforcement took the couriers to the

police station, where the FBI Drug Task Force took

over the investigation. Interviews revealed that Moore

and Saunders were returning from making a cash

delivery to, and heroin pickup from, Leonard Wright in

Detroit, Michigan. A search of the couriers’ cell phones

revealed Minter had paid them in either cash or drugs,

or both, to deliver the money to Wright and return with

drugs. After delivery of the heroin to Minter, the plan

was for him to distribute it.

On the same day that Moore and Saunders were

arrested and questioned, members of the FBI Drug

Task Force followed up by obtaining and executing a

search warrant for Minter’s residence. There they

recovered traces of heroin, scales, and about $18,000 in

cash. As a result, Minter was arrested and charged

with state offenses related to conspiracy to traffic in

drugs.

Moore and Saunders revealed in their interviews

with detectives that they had made similar journeys

between Wright and Minter in the past. According to

Moore, Minter introduced her to Wright during an

earlier delivery trip. Moore explained that Wright was

“in charge,” as the main leader of the operation, and

that he set the amount she and Saunders were paid. As

for Minter’s role, according to Moore, he told her and

Saunders where and when to give him the drugs in

Huntington, paid them for the deliveries, and gave

them cash to take to Wright.

On the day after Minter’s arrest, August 29, 2017,

members of the FBI Drug Task Force executed a second

narcotics search warrant, based on information from a

App. 4

confidential informant, to search under the porch of

Minter’s residence. Minter lived in an apartment on the

upper floor of the building, and he shared the

downstairs porch with other tenants. During this

search, officers recovered a large charcoal bag

containing 529 grams of heroin and 37 grams of crack

cocaine. Underneath the steps of the porch, officers also

recovered a stolen .357 Magnum revolver. The revolver

was hidden in a plastic grocery bag about eight feet

from the bag containing the drugs.

Law enforcement never tested the gun for Minter’s

DNA or fingerprints. Also, Moore testified that she had

never seen Minter with a gun in person. She did,

however, recall him and Wright “playing” with a gun

during a FaceTime video call, though she could not

recall further details.

Other calls relevant to the case occurred between

Minter and his girlfriend, Erica Miller, while he was in

jail. In one call, he told her to “make sure that nobody

got behind [the house].” The next day Minter called

Miller again, telling her to make sure nobody walked

around to the back of the house. Miller then informed

Minter that the police had found a revolver and “a bag

with a bunch of other stuff” under the porch. Minter

replied, “[O]h my God, Erica, it’s over with, because if

they found that s***, oh, my God, Erica, . . . I need you

to go back and look underneath there.” In response,

Miller reminded Minter that the phone call was being

recorded, and Minter began to cry.

Despite Miller’s warning of their calls being

recorded, Minter in a subsequent call told his girlfriend

to check underneath the porch, where there should be

App. 5

a “big-a** charcoal bag.” Miller reported that no such

bag was under te porch. Minter then told her to “check

by the steps. You have to move the grass to look.”

Minter pleaded guilty to conspiring to distribute

heroin in September 2018, and the district court

sentenced him as a career offender. This court vacated

that sentence after the government conceded that

Minter no longer qualified as a career offender

following this court’s decision in United States v. Havis,

927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). On

remand, the district court applied a three-level

enhancement for an aggravating role in an offense

involving five participants and a two-level

enhancement for firearm possession during drug

trafficking. Minter appealed a second time, and this

court again vacated his sentence because the offense

involved only four known participants. On the second

remand, the district court applied a two-level

enhancement for his role as a manager or supervisor

and the same two-level firearm-possession

enhancement.

Now, Minter appeals the second resentencing order,

arguing that he was not a manager or supervisor in the

conspiracy and that he did not constructively possess

the revolver found under the porch.

II.

This court reviews criminal sentences “under a

deferential abuse-of-discretion standard for

reasonableness.” United States v. Seymour, 592

F. App’x 482, 482 (6th Cir. 2015) (per curiam) (citing

United States v. Studabaker, 578 F.3d 423, 430 (6th

App. 6

Cir. 2009)). In assessing procedural reasonableness, the

court’s analysis “includes determining whether the

district court properly calculated a defendant’s

Guidelines range.” United States v. Seymour, 739 F.3d

923, 929 (6th Cir. 2014). “As for the calculation of the

Guidelines range, this court reviews the district court’s

factual findings for clear error and its legal conclusions

de novo.” United States v. Hills, 27 F.4th 1155, 1193

(6th Cir. 2022) (citing United States v. Abdalla, 972

F.3d 838, 850 (6th Cir. 2020)).

III.

A. Managerial-Role Enhancement

The district court did not err in imposing a

managerial-role sentence enhancement. Although

Minter was not the ultimate leader of the drugtrafficking operation, he is still subject to a managerial

enhancement under the facts of this case. That is

because the evidence included support for the district

court’s findings that he (1) coordinated meetings to

exchange wholesale shipments of heroin for delivery

fees and (2) received a larger share of the profits of the

drug conspiracy than Moore and Saunders.

A

two-level

managerial-role

sentencing

enhancement applies when a defendant “was an

organizer, leader, manager, or supervisor in any

criminal activity” involving four or fewer participants

that was not otherwise extensive in its scope. U.S.S.G.

§ 3B1.1(c). Generally, “a defendant must have exerted

control over at least one individual within a criminal

organization for the enhancement of § 3B1.1 to be

warranted.” United States v. Vandeberg, 201 F.3d 805,

App. 7

811 (6th Cir. 2000) (quoting United States v. GortDidonato, 109 F.3d 318, 321 (6th Cir. 1997)). “Merely

playing an essential role in the offense is not

equivalent to exercising managerial control over other

participants.” Id. (citing United States v. Albers, 93

F.3d 1469, 1487 (10th Cir. 1996)).

Factors relevant to a leadership enhancement

include if the defendant “exercised decisionmaking

authority, recruited accomplices, received a larger

share of the profits, was instrumental in the planning

phase of the criminal venture, or exercised control or

authority over at least one accomplice.” United States v.

Vasquez, 560 F.3d 461, 473 (6th Cir. 2009) (emphasis

added) (citing United States v. Lalonde, 509 F.3d 750,

765–66 (6th Cir. 2007)). Importantly, “[a] district court

need not find each factor in order to warrant an

enhancement.” United States v. Castilla-Lugo, 699 F.3d

454, 460 (6th Cir. 2012) (citing United States v. Gates,

461 F.3d 703, 709 (6th Cir. 2006)). And “[t]he

government bears the burden of proving that the

enhancement applies by a preponderance of the

evidence.” Vandeberg, 201 F.3d at 811 (citing United

States v. Martinez, 181 F.3d 794, 797 (6th Cir. 1999)).

But we review a district court’s decision to grant a

leadership enhancement under § 3B1.1 deferentially

because it raises a “fact-intensive” question. See United

States v. Washington, 715 F.3d 975, 983 (6th Cir.

2013); United States v. Warren, 2023 WL 1961222, at

*3 (6th Cir. Feb. 13, 2023) (citing cases).

Moore testified that Wright oversaw the conspiracy,

but her testimony also implicated Minter as a manager

in the scheme. Minter told her where and when to meet

App. 8

him to deliver the drugs and pick up the cash so that

she and Saunders could bring the money to Wright in

Detroit. Minter provided directions to Moore by

coordinating the locations for her to retrieve the cash to

transport to Detroit. And Minter was responsible for

paying Moore and Saunders for their trips between

Detroit and Huntington, which confirms some

management or supervision. This court as held that a

district court’s finding that a defendant repeatedly

directed a drug courier to coordinate delivery can

sustain application of the § 3B1.1 enhancement. See,

e.g., United States v. Munoz, 233 F.3d 410, 416 (6th

Cir. 2000); United States v. Gaitan-Acevedo, 148 F.3d

577, 595–96 (6th Cir. 1998).

Yet the exercise of control over a conspiracy’s

“property, assets, or activities” does not alone warrant

a sentencing enhancement, so Minter’s coordination of

the location for the drug buys and provision of cash for

the drugs, without more, do not support a managerialrole enhancement. Gort-Didonato, 109 F.3d at 321. If

Minter had only participated in a purely buyer-seller

relationship with Moore and Saunders, then he would

not necessarily have exercised control over them and

would not be subject to an enhancement. See United

States v. Swanberg, 370 F.3d 622, 629 (6th Cir. 2004)

(explaining that selling drugs to multiple individuals

did not allow for a leadership enhancement under

U.S.S.G. § 3B1.1 because that is only exercising control

over the property, assets, or activities of the

enterprise).

This conclusion aligns with the holding of this court

from Minter’s second appeal. Before that appeal, the

App. 9

district court “reasoned that Minter must be

distributing the heroin he received,” so the district

court “determined this individual who received drugs

as part of the conspiracy qualified as a criminal

participant for purposes of § 3B1.1.” United States v.

Minter, No. 20-6379, at 3 (6th Cir. Sep. 9, 2021) (order)

(cleaned up). This court disagreed, reasoning that a

sale to an end user of the drugs did not, standing alone,

make the end user a participant in the conspiracy. Id.

at 4; see United States v. Wheeler, 67 F. App’x 296, 304

(6th Cir. 2003).

Most of our sister circuits have also held that an

arm’s length seller-buyer relationship cannot lead to a

managerial enhancement under § 3B1.1. See, e.g.,

United States v. Lora-Andres, 844 F.3d 781, 785–86

(8th Cir. 2016); United States v. Hussein, 664 F.3d 155,

162 (7th Cir. 2011); United States v. Egge, 223 F.3d

1128, 1133 (9th Cir. 2000); United States v. BaezAcuna, 54 F.3d 634, 639 (10th Cir. 1995); United States

v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir. 1993); United

States v. Carbajal-Gonzalez, 661 F. App’x. 825, 827 (5th

Cir. 2016); United States v. Baker, 539 F. App’x. 299,

304–05 (4th Cir. 2013); United States v. Duran, 528

F. App’x. 215, 220–21 (3d Cir. 2013). But see United

States v. Zepeta, 389 F. App’x. 907, 910 (11th Cir. 2010)

(holding that an individual buyer could be considered

a participant).

Yet several facts demonstrate that Minter’s

relationship with Moore and Saunders was not merely

that of a buyer and seller. For one thing, Minter paid

them a delivery fee rather than the value of the drugs.

He also dictated the details of their exchanges as the

App. 10

“buyer,” whereas in most drug deals, the seller does so.

In addition, he had consistent, repeated contact with

the couriers throughout the conspiracy, and he

introduced Moore to Wright, another member of the

same conspiracy.

Most significant here, Minter benefited financially

from the operation more than either Moore or

Saunders. Minter’s retention of most of the proceeds,

while paying another conspirator only a delivery fee,

supports a § 3B1.1 enhancement. See United States v.

Plunk, 415 F. App’x 650, 653 (6th Cir. 2011).

Minter’s contention that he did not claim a larger

share of the fruits of the crime is tenuous. Moore and

Saunders were paid only $1,500 for transporting the

drugs between Detroit and Huntington. That is a small

sum when compared to the amount of money the pair

transported from Minter to Wright, between $15,000

and $30,000. It is only a fraction of the proceeds in

light of the value of the large volume of heroin

transported from Wright to Minter—around 400 grams

worth about $100 per gram (amounting to about

$40,000 per trip).

Moore testified that she did not think that she and

Saunders were being paid the full amount of money

that the drugs were sold for and that Minter and

Wright likely received a larger share. The district court

correctly observed that “as a local distributor in

Huntington, [Minter] was going to profit much more

than Moore or Saunders who were mere couriers.” At

a minimum, that factual finding by the district court is

not clearly erroneous because of the discrepancy

between the delivery fees paid and the money likely

App. 11

generated through the distribution of the heroin in

Huntington. Minter was the only conspirator in

Huntington, so he did not equally split any profits with

another conspirator there. While Wright may have also

received a larger share of the profits than Moore or

Saunders, Minter would have as well.

Again, “[a] district court need not find each factor in

order to warrant an enhancement.” Castilla-Lugo, 699

F.3d at 460. Here, the record provided enough

evidentiary support for the district court to reasonably

conclude that Minter not only exercised authority over

an accomplice but also received a larger share of the

drug-trafficking profits than that accomplice. Thus, the

record supported a finding that Minter exercised at

least some level of managerial control over Moore and

Saunders. Thus, especially given our deferential

standard of review, the district court did not err in

imposing the managerial-role sentence enhancement.

B. Firearm-Possession Enhancement

We also find no error in the district court’s

imposition of the firearm-possession enhancement.1

Minter’s statements made in the jail calls with his

girlfriend support the district court’s findings that he

1

On his second appeal after the first remand, Minter challenged

the managerial-role enhancement but did not raise the firearmpossession enhancement issue. Generally, this would constitute a

forfeiture of the issue in later appeals. See United States v. Gibbs,

626 F.3d 344, 351 (6th Cir. 2010). Yet the United States did not

contend that Minter forfeited that argument. Thus, the

“government forfeited the forfeiture.” United States v. Shultz, 733

F.3d 616, 619 (6th Cir. 2013) (citing United States v. Turner, 602

F.3d 778, 783 (6th Cir. 2010)).

App. 12

knew the pistol was hidden beneath the porch and that

he constructively possessed the firearm.

A two-level sentence enhancement under U.S.S.G.

§ 2D1.1(b)(1) “applies when the government establishes

by a preponderance of the evidence that (1) the

defendant actually or constructively possessed the

dangerous weapon (2) during the offense.” United

States v. Mosley, 53 F.4th 947, 966 (6th Cir. 2022)

(citing United States v. West, 962 F.3d 183, 187 (6th

Cir. 2020)). Further, “[i]f a weapon was present during

relevant conduct, the enhancement applies unless the

defendant establishes a clear improbability that the

weapon was connected to the offense.” United States v.

Wallace, 51 F.4th 177, 183 (6th Cir. 2022).

“[A] defendant is in constructive possession of a

weapon if he has ‘ownership, or dominion or control

over the item itself, or dominion over the premises

where the item is located.’” United States v. Ayoub, 701

F. App’x 427, 447 (6th Cir. 2017) (quoting United States

v. Wheaton, 517 F.3d 350, 367) (6th Cir. 2008)).

Constructive possession occurs “when a person does not

have actual possession but instead knowingly has the

power and the intention . . . to exercise dominion and

control over [the] object, either directly or through

others.” United States v. Bailey, 553 F.3d 940, 944 (6th

Cir. 2009) (citation omitted).

Notably, the revolver was recovered under the steps

of a shared porch that was not in the exclusive

possession of Minter. “[W]here the defendant is in

nonexclusive possession of premises on which [illicit

contraband] [is] found, it cannot be inferred that he

knew of the presence of such [contraband] and had

App. 13

control of [it], unless there are other incriminating

statements or circumstances tending to buttress such

an inference.” Id. at 944 n.3 (alterations in original)

(citation omitted). In United States v. Crumpton, 824

F.3d 593 (6th Cir. 2016), this court held that a finding

of constructive possession was warranted when the

defendant’s “affiliation with and control over the front

area of the [multi-family residence where he lived],

[was] combined with his statement regarding his

involvement in placing the ammunition in the house

and holding it for someone else.” Id. at 609.

Here, Minter’s statements were similar to

Crumpton’s, thus supporting the finding of constructive

possession. Although Minter did not explicitly mention

the revolver in his jail phone calls to Miller, the district

court did not clearly err in finding that he was

referring to that firearm.

Again, to recount the relevant facts, after his arrest

Minter called Miller and told her to “make sure that

nobody got behind [the house].” In a later call, Miller

told Minter that police had found a revolver and a bag

of drugs under the porch. Minter replied, “[O]h my God,

Erica, it’s over with, because if they found that s***

. . . .” After Miller reminded Minter that the phone call

was being recorded, Minter began to cry. Later, Minter

told Miller to look underneath the porch. He first told

her that there should be a “big-a** charcoal bag.”

Miller told Minter that there were not any bags under

the porch. Minter then told her, as Detective Chris

Kirk testified: “[C]heck by the steps. You have to move

the grass to look.” This was the exact place where the

revolver had been discovered.

App. 14

Minter had no reason to tell Miller specifically to

“check by the steps” aside from directing her to look for

the revolver. Minter argues that the most reasonable

inference from his statements is that he was merely

concerned that police had found the bag of drugs. At

the same time, Minter also claims that he “had no

reason to pay attention to the contents of a grocery bag

under his neighbor’s stairs.” In making that argument,

Minter attempts to distinguish between the area of the

porch where law enforcement found the bag with the

drugs and the area where they found the bag

containing the pistol. But Minter’s claims are

inconsistent. It cannot be true that he had no reason to

concern himself with the area under the porch where

the weapon was stored because he expressed concern to

Miller about checking by the steps, which were eight

feet away from his bag of heroin and exactly where the

weapon was found.

Further, Minter’s admission that he hid heroin

under the porch establishes that he used the space as

a hiding spot for illicit items. This affiliation with the

area bolsters the district court’s reasonable finding that

Minter constructively possessed the revolver. Though

Minter shared the porch with other residents, his

actions point to his “affiliation with and control over”

the area beneath the porch to hide illegal materials.

Crumpton, 824 F.3d at 609. Given that Minter already

thought the porch a suitable hiding spot for his stash of

heroin, it is a rational inference that Minter would

have also used the porch to hide a stolen revolver.

Thus, the district court did not err in applying the

enhancement.

App. 15

Minter suggests that the government’s decision not

to send the gun for fingerprint or DNA testing creates

a glaring gap in the case against him, but his argument

is unpersuasive. As this court reasoned in United

States v. Malone, 308 F. App’x 949 (6th Cir. 2009),

“‘[t]he fact that no identifiable fingerprints were found

on [a gun] is not determinative’ as it has been

explained that ‘fingerprints are rarely identified on

firearms.’” Id. at 953 (alterations in original) (quoting

United States v. Coffee, 434 F.3d 887, 897 (6th Cir.

2006) (holding that the absence of fingerprints on

either of two revolvers was not determinative where

“there was sufficient evidence for a rational trier of fact

to conclude that at the time of the search, defendant

had dominion over the house where the firearms were

located”)).

Minter also argues that a defendant’s previous

possession of a gun alone cannot support a theory of

constructive possession, arguing that Moore’s

testimony about Minter possibly possessing a gun in

the past was not enough to support the enhancement.

This court’s decision in United States v. Arnold, 486

F.3d 177 (6th Cir. 2007) (en banc), lends credence to

that argument by holding that if “the only evidence

connecting the defendant to the gun (other than

proximity) was that the defendant at some distant

point in time and in some other place had possessed a

gun,” then the possession of the gun is too attenuated

to be attributed to the defendant. Id. at 183. But

Minter’s constructive possession of the revolver was not

attenuated here because the facts adequately support

the district court’s inference that Minter knew about

the revolver’s presence under the porch. Minter’s own

App. 16

statements demonstrate his concern about the area

under the porch—more specifically, the spot “by the

steps” where the revolver was hidden—and his

admitted use of the porch as a hiding space for illicit

materials demonstrated that Minter exercised control

over the revolver apart from his control over the

charcoal bag of heroin.

IV.

For the foregoing reasons, we AFFIRM the district

court’s sentence.

App. 17

APPENDIX B

AO 245C (Rev. 09/19) Amended Judgment in a

Criminal Case Sheet 1A

UNITED STATES DISTRICT COURT

Eastern District of Kentucky – Northern

Division at Ashland

Case Number: 0:17-CR-10-S-DLB-5

[Filed July 12, 2022]

_________________________________

UNITED STATES OF AMERICA )

)

v.

)

)

Eric Lavell Minter

)

Aka E

)

________________________________ )

AMENDED JUDGMENT IN A CRIMINAL CASE

Date of Original Judgment:

December 4, 2020

(Or Date of Last Amended Judgment)

USM Number: 11666-088

Sebastian M. Joy

Defendant’s Attorney

THE DEFENDANT:

: pleaded guilty to count(s) 2 [DE#12]

App. 18

9 pleaded nolo contendere to count(s) __________

which was accepted by the court.

9 was found guilty on count(s) __________

after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title &

Section

21:846,

Nature of Offense

Conspiracy to

Distribute 100

Grams Or More Of a

Mixture Or

Substance

841(b)(1)(B) Containing A

& 851

Detectable Amount of

Heroin

Offense

Ended Count

08/28/17 2

The defendant is sentenced as provided in pages 2

through 7 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

9 The defendant has been found not guilty on count(s)

__________________

9 Count(s) ________________ 9 is 9 are dismissed on

the motion of the United States.

It is ordered that the defendant must notify the

United States attorney for this district within 30 days

of any change of name, residence, or mailing address

until all fines, restitution, costs, and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant must notify

App. 19

the court and United States attorney of material

changes in economic circumstances.

July 11, 2022

Date of Imposition of Judgment

/s/ David L. Bunning

Signature of Judge

Honorable David L. Bunning, U.S. District Judge

Name and Title of Judge

July 12, 2022

Date

IMPRISONMENT

The defendant is hereby committed to the custody of

the Federal Bureau of Prisons to be imprisoned for a

total term of:

ONE HUNDRED FIFTY (150) MONTHS*

: The court makes the following recommendations to

the Bureau of Prisons:

That the defendant participate in the 500-Hour

RDAP Program.

That the defendant participate in a job skills and/or

vocational training program.

: The defendant is remanded to the custody of the

United States Marshal.

9 The defendant shall surrender to the United States

Marshal for this district:

9 at ________ 9 a.m. 9 p.m. on ____.

App. 20

9 as notified by the United States Marshal.

9 The defendant shall surrender for service of

sentence at the institution designated by the

Bureau of Prisons:

9 before 2 p.m. on ______.

9 as notified by the United States Marshal.

9 as notified by the Probation or Pretrial Services

Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on ______ to ______ at ______,

with a certified copy of this judgment.

______________________________

UNITED STATES MARSHAL

By

______________________________

DEPUTY UNITED STATES MARSHAL

SUPERVISED RELEASE

Upon release from imprisonment, you will be on

supervised release for a term of:

EIGHT (8) YEARS

MANDATORY CONDITIONS

1.

2.

You must not commit another federal, state or

local crime.

You must not unlawfully possess a controlled

substance.

App. 21

3.

4.

5.

6.

7.

You must refrain from any unlawful use of a

controlled substance. You must submit to one

drug test within 15 days of release from

imprisonment and at least two periodic drug

tests thereafter, as determined by the court.

9 The above drug testing condition is

suspended, based on the court’s

determination that you pose a low risk of

future substance abuse. (Check, if

applicable.)

9 You must make restitution in accordance

with 18 U.S.C. §§ 3663 and 3663A or any

other statute authorizing a sentence of

restitution. (Check, if applicable.)

: You must cooperate in the collection of DNA

as directed by the probation officer. (Check, if

applicable.)

9 You must comply with the requirements of

the Sex Offender Registration and

Notification Act (34 U.S.C. § 20901, et seq.)

as directed by the probation officer, the

Bureau of Prisons, or any state sex offender

registration agency in the location where you

reside, work, are a student, or were convicted

of a qualifying offense. (Check, if applicable.)

9 You must participate in an approved

program for domestic violence. (Check, if

applicable.)

You must comply with the standard conditions that

have been adopted by this court as well as with any

other conditions on the attached page.

App. 22

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply

with the following standard conditions of supervision.

These conditions are imposed because they establish

the basic expectations for your behavior while on

supervision and identify the minimum tools needed by

probation officers to keep informed, report to the court

about, and bring about improvements in your conduct

and condition.

1.

2.

3.

4.

5.

You must report to the probation office in the

federal judicial district where you are authorized

to reside within 72 hours of your release from

imprisonment, unless the probation officer

instructs you to report to a different probation

office or within a different time frame.

After initially reporting to the probation office,

you will receive instructions from the court or

the probation officer about how and when you

must report to the probation officer, and you

must report to the probation officer as

instructed.

You must not knowingly leave the federal

judicial district where you are authorized to

reside without first getting permission from the

court or the probation officer.

You must answer truthfully the questions asked

by your probation officer.

You must live at a place approved by the

probation officer. If you plan to change where

you live or anything about your living

arrangements (such as the people you live with),

you must notify the probation officer at least

App. 23

6.

7.

8.

10 days before the change. If notifying the

probation officer in advance is not possible due

to unanticipated circumstances, you must notify

the probation officer within 72 hours of

becoming aware of a change or expected change.

You must allow the probation officer to visit you

at any time at your home or elsewhere, and you

must permit the probation officer to take any

items prohibited by the conditions of your

supervision that he or she observes in plain

view.

You must work full time (at least 30 hours per

week) at a lawful type of employment, unless the

probation officer excuses you from doing so. If

you do not have full-time employment you must

try to find full-time employment, unless the

probation officer excuses you from doing so. If

you plan to change where you work or anything

about your work (such as your position or your

job responsibilities), you must notify the

probation officer at least 10 days before the

change. If notifying the probation officer at least

10 days in advance is not possible due to

unanticipated circumstances, you must notify

the probation officer within 72 hours of

becoming aware of a change or expected change.

You must not communicate or interact with

someone you know is engaged in criminal

activity. If you know someone has been convicted

of a felony, you must not knowingly

communicate or interact with that person

without first getting the permission of the

probation officer.

App. 24

9.

10.

11.

12.

13.

If you are arrested or questioned by a law

enforcement officer, you must notify the

probation officer within 72 hours.

You must not own, possess, or have access to a

firearm, ammunition, destructive device, or

dangerous weapon (i.e., anything that was

designed, or was modified for, the specific

purpose of causing bodily injury or death to

another person such as nunchakus or tasers).

You must not act or make any agreement with a

law enforcement agency to act as a confidential

human source or informant without first getting

the permission of the court.

If the probation officer determines that you pose

a risk to another person (including an

organization), the probation officer may require

you to notify the person about the risk and you

must comply with that instruction. The

probation officer may contact the person and

confirm that you have notified the person about

the risk.

You must follow the instructions of the

probation officer related to the conditions of

supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the

conditions specified by the court and has provided me

with a written copy of this judgment containing these

conditions. For further information regarding these

conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov.

Defendant’s Signature _____________ Date ________

App. 25

SPECIAL CONDITIONS OF SUPERVISION

1.

You must provide to the USPO, within 7 (seven)

days of release from the custody of the Bureau of

Prisons, a written report, in a form the USPO

directs, listing each and every prescription

medication in your possession, custody or

control. The list must include, but not be limited

to, any prescription medication that contains a

controlled substance and encompasses all

current, past and outdated or expired

prescription medications in your possession,

custody, or control at the time of the report;

2.

You must notify the USPO immediately (i.e.,

within no later than 72 hours) if you receive any

prescription for a medication containing a

controlled substance during the period of

supervised release. You must provide the USPO

such documentation and verification as the

USPO may reasonably request and in a form the

USPO directs;

3.

You must comply strictly with the orders of any

physician or other prescribing source with

respect to use of all prescription medications;

and,

4.

You must report any theft or destruction of your

prescription medications to the U.S. Probation

Officer within 72 hours of the theft or

destruction.

5.

You must submit your person, property, house,

residence, vehicle, papers, computers (as defined

in 18 U.S.C. § 1030(e)(1), but including other

App. 26

devices excluded from this definition), other

electronic communications or data storage

devices or media, or office, to a search conducted

by a United States probation officer. Failure to

submit to a search will be grounds for revocation

of release. You must warn any other occupants

that the premises may be subject to searches

pursuant to this condition.

6.

You must participate in a substance abuse

treatment program and must submit to periodic

drug and alcohol testing at the direction and

discretion of the probation officer during the

term of supervision. You must pay for the cost of

treatment services to the extent you are able as

determined by the probation officer.

7.

You must refrain from obstructing or attempting

to obstruct or tamper, in any fashion, with the

efficiency and accuracy of any prohibited

substance testing that is required as a condition

of release.

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal

monetary penalties under the schedule of payments on

Sheet 6.

App. 27

Assess

ment

Restitution Fine

AVAA JVTA

Assess Assess

ment* ment**

TOTALS $ 100.00 $

$

$ N/A $ N/A

(Paid in Community Waived

Full)

Waived

9 The determination of restitution is deferred until

_____. An Amended Judgment in a Criminal Case

(AO 245C) will be entered after such determination.

9 The defendant must make restitution (including

community restitution) to the following payees in

the amount listed below.

If the defendant makes a partial payment, each

payee shall receive an approximately proportioned

payment, unless specified otherwise in the priority

order or percentage payment column below.

However, pursuant to 18 U.S.C. § 3664(i), all

nonfederal victims must be paid before the United

States is paid.

Name of

Payee

Total Loss*** Restitution Priority or

Ordered

Percentage

TOTALS $ ________ $ _________

*

Amy, Vicky, and Andy Child Pornography Victim Assistance Act

of 2018, Pub. L. No. 115-299.

**

Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

***

Findings for the total amount of losses are required under

Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

committed on or after September 13, 1994, but before April 23,

App. 28

9 Restitution amount ordered pursuant to plea

agreement $ _________

9 The defendant must pay interest on restitution and

a fine of more than $2,500, unless the restitution or

fine is paid in full before the fifteenth day after the

date of the judgment, pursuant to 18 U.S.C.

§ 3612(f). All of the payment options on Sheet 6 may

be subject to penalties for delinquency and default,

pursuant to 18 U.S.C. § 3612(g).

9 The court determined that the defendant does not

have the ability to pay interest and it is ordered

that:

9 the interest requirement is waived for the 9 fine

9 restitution.

9 the interest requirement for the 9 fine

9 restitution is modified as follows:

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay,

payment of the total criminal monetary penalties is due

as follows:

A : Lump sum payment of

immediately, balance due

$

100.00

due

9 not later than ___, or

: in accordance with 9 C, 9 D, 9 E, or : F

below; or

B 9 Payment to begin immediately (may be

combined with 9 C, 9 D, or 9 F below); or

App. 29

C 9 Payment in equal ______ (e.g., weekly, monthly,

quarterly) installments of $ ______ over a period

of ______ (e.g., months or years), to commence

_____ (e.g., 30 or 60 days) after the date of this

judgment; or

D 9 Payment in equal ______ (e.g., weekly, monthly,

quarterly) installments of $ ______ over a period

of ______ (e.g., months or years), to commence

_____ (e.g., 30 or 60 days) after release from

imprisonment to a term of supervision; or

E 9 Payment during the term of supervised release

will commence within ______ (e.g., 30 or 60 days)

after release from imprisonment. The court will

set the payment plan based on an assessment of

the defendant’s ability to pay at that time; or

F : Special instructions regarding the payment of

criminal monetary penalties:

Criminal monetary penalties are payable to:

Clerk, U. S. District Court, Eastern District of

Kentucky

336 Carl Perkins Fed Bldg., 1405 Greenup Ave.,

Ashland, KY 41101

INCLUDE CASE NUMBER

CORRESPONDENCE

WITH

ALL

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

criminal monetary penalties is due during the period of

imprisonment. All criminal monetary penalties, except

those payments made through the Federal Bureau of

App. 30

Prisons’ Inmate Financial Responsibility Program, are

made to the clerk of the court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

9 Joint and Several

Case Number

Defendant and

Co-Defendant

Names (including

Joint and Corresponding

defendant

Total

Several Payee, if

number)

Amount Amount appropriate

9 The defendant shall pay the cost of prosecution.

9 The defendant shall pay the following court cost(s):

9 The defendant shall forfeit the defendant’s interest

in the following property to the United States:

Payments shall be applied in the following order:

(1) assessment, (2) restitution principal, (3) restitution

interest, (4) AVAA assessment, (5) fine principal,

(6) fine interest, (7) community restitution, (8) JVTA

assessment, (9) penalties, and (10) costs, including cost

of prosecution and court costs.

App. 31

REASON FOR AMENDMENT

(Not for Public Disclosure)

REASON FOR AMENDMENT:

: Correction of Sentence on Remand (18 U.S.C.

3742(f)(1) and (2))

9 Reduction of Sentence for Changed Circumstances

(Fed. R. Crim. P. 35(b))

9 Correction of Sentence by Sentencing Court (Fed. R.

Crim. P. 35(a))

9 Correction of Sentence for Clerical Mistake (Fed. R.

Crim. P. 36)

9 Modification of Supervision Conditions (18 U.S.C.

§ 3563(c) or 3583(e))

9 Modification of Imposed Term of Imprisonment for

Extraordinary and Compelling Reasons (18 U.S.C.

§ 3582(c)(1))

9 Modification of Imposed Term of Imprisonment for

Retroactive Amendment(s) to the Sentencing

Guidelines (18 U.S.C. § 3582(c)(2))

9 Direct Motion to District Court Pursuant to

9 28 U.S.C. § 2255 or 9 18 U.S.C. § 3559(c)(7)

9 Modification of Restitution Order (18 U.S.C. § 3664)

App. 32

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No. 22-5600

[Filed September 26, 2023]

_________________________________

UNITED STATES OF AMERICA )

Plaintiff - Appellee

)

)

v.

)

)

ERIC LAVELL MINTER

)

Defendant - Appellant

)

________________________________ )

ORDER

BEFORE: STRANCH, BUSH and MURPHY, Circuit

Judges.

Upon consideration of the petition for rehearing

filed by the Appellant,

It is ORDERED that the petition for rehearing be,

and it hereby is, DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

/s/ Deborah S. Hunt

Issued: September 26, 2023

App. 33

APPENDIX D

§3B1.1. Aggravating Role

Based on the defendant’s role in the offense, increase

the offense level as follows:

(a)

If the defendant was an organizer or leader of a

criminal activity that involved five or more

participants or was otherwise extensive,

increase by 4 levels.

(b)

If the defendant was a manager or supervisor

(but not an organizer or leader) and the criminal

activity involved five or more participants or was

otherwise extensive, increase by 3 levels.

(c)

If the defendant was an organizer, leader,

manager, or supervisor in any criminal activity

other than described in (a) or (b), increase by 2

levels.

Commentary

Application Notes:

1. A “participant” is a person who is criminally

responsible for the commission of the offense, but

need not have been convicted. A person who is not

criminally responsible for the commission of the

offense (e.g., an undercover law enforcement officer)

is not a participant.

2. To qualify for an adjustment under this section, the

defendant must have been the organizer, leader,

App. 34

manager, or supervisor of one or more other

participants. An upward departure may be

warranted, however, in the case of a defendant who

did not organize, lead, manage, or supervise

another participant, but who nevertheless exercised

management responsibility over the property,

assets, or activities of a criminal organization.

3. In assessing whether an organization is “otherwise

extensive,” all persons involved during the course of

the entire offense are to be considered. Thus, a

fraud that involved only three participants but used

the unknowing services of many outsiders could be

considered extensive.

4. In distinguishing a leadership and organizational

role from one of mere management or supervision,

titles such as “kingpin” or “boss” are not controling.

Factors the court should consider include the

exercise of decision making authority, the nature of

participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a

larger share of the fruits of the crime, the degree of

participation in planning or organizing the offense,

the nature and scope of the illegal activity, and the

degree of control and authority exercised over

others. There can, of course, be more than one

person who qualifies as a leader or organizer of a

criminal association or conspiracy. This adjustment

does not apply to a defendant who merely suggests

committing the offense.

Background: This section provides a range of

adjustments to increase the offense level based upon

the size of a criminal organization (i.e., the number of

App. 35

participants in the offense) and the degree to which the

defendant was responsible for committing the offense.

This adjustment is included primarily because of

concerns about relative responsibility. However, it is

also likely that persons who exercise a supervisory or

managerial role in the commission of an offense tend to

profit more from it and present a greater danger to the

public and/or are more likely to recidivate. The

Commission’s intent is that his adjustment should

increase with both the size of the organization and the

degree of the defendant’s responsibility.

In relatively small criminal enterprises that are not

otherwise to be considered as extensive in scope or in

planning or preparation, the distinction between

organization and leadership, and that of management

or supervision, is of less significance than in larger

enterprises that tend to have clearly delineated

divisions of responsibility. This is reflected in the

inclusiveness of §3B1.1(c).

App. 36

§2D1.1

Unlawful Manufacturing, Importing,

Exporting, or Trafficking (Including

Possession with Intent to Commit These

Offenses); Attempt or Conspiracy

*

(b)

*

Specific Offense Characteristics

(1)

If a dangerous weapon (including a

firearm) was possessed, increase by 2

levels.

*

11.

*

*

*

Application of Subsections (b)(1) and

(b)(2).—

(A)

Application of Subsection (b)(1).—

Definitions of “firearm” and “dangerous

weapon” are found in the Commentary to

§1B1.1 (Application Instructions). The

enhancement for weapon possession in

subsection (b)(1) reflects the increased

danger of violence when drug traffickers

possess weapons. The enhancement

should be applied if the weapon was present, unless it is clearly improbable that

the weapon was connected with the

offense. For example, the enhancement

would not be applied if the defendant,

arrested at the defend-ant’s residence,

had an unloaded hunting rifle in the

closet. The enhancement also applies to

offenses that are referenced to §2D1.1; see

§§2D1.2(a)(1) and (2), 2D1.5(a)(1), 2D1.6,

App. 37

2D1.7(b)(1), 2D1.8, 2D1.11(c)(1), and

2D1.12(c)(1).

*

*

*