                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 06a0679n.06
                              Filed: September 8, 2006

                                            Nos. 05-1706, 05-1795

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                                          )
                                                                   )         ON APPEAL FROM THE
         Plaintiff-Appellee,                                       )         WESTERN DISTRICT OF
                                                                   )         MICHIGAN
v.                                                                 )
                                                                   )                               OPINION
CHRISTOPHER STEVEN BOWEN,                                          )
OREANDA JABBAR HALL,                                               )
                                                                   )
         Defendants-Appellants.                                    )



BEFORE:           DAUGHTREY and COOK, Circuit Judges; COLLIER, District Judge.*

         CURTIS L. COLLIER, District Judge. This criminal appeal involves two defendants in

a multidefendant drug trafficking conspiracy. Appellant Christopher Bowen (“Bowen”) challenges

the denial of his motion for judgment of acquittal under Fed. R. Crim. P. 29 for lack of evidence

against him, and argues his sentence was imposed in violation of United States v. Booker, 543 U.S.

220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) and Blakely v. Washington, 542 U.S. 296, 124 S. Ct.

2531, 159 L. Ed. 2d 403 (2004). Appellant Oreanda Hall (“Hall”) in his brief raised many issues,

but conceded at oral argument all but one had been settled by this court in opinions contrary to his

arguments; he now only challenges his sentence, arguing it was procedurally unreasonable.



         *
           The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District of Tennessee,
sitting by designation.
Nos. 05-1706, 05-1795
United States v. Bowen, et al.

       Because the evidence supporting Bowen’s conviction, viewed in the light most favorable to

the prosecution, was so strong “any rational trier of fact could have found the essential elements of

the crime,” we AFFIRM the district court’s denial of his motion under Rule 29. United States v.

Clay, 346 F.3d 173, 176 (6th Cir. 2003) (quoting United States v. Jones, 102 F.3d 804, 807 (6th Cir.

1996). Further, as the district court properly imposed a sentence according to the statutory

mandatory minimum, we AFFIRM Bowen’s sentence.

       Additionally, the district court’s sentencing of Hall was not procedurally unreasonable, and

we AFFIRM his sentence.

                                 I. PROCEDURAL HISTORY

       Both appellants, as well as three others, were indicted on one count of conspiracy to

distribute more than 50 grams of a mixture or substance containing cocaine base (“crack”) in

violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(iii). Bowen was convicted of the charge after

a jury trial. Bowen had three prior drug felony convictions of which the Government filed notice,

therefore the mandatory statutory sentence for this offense was life in prison without the possibility

of release under 21 U.S.C. § 841(b)(1)(A).

       At his sentencing, Bowen did not lodge any objections, except to his guilt, and received the

statutory mandatory sentence of life imprisonment without the possibility of release.

       Hall pleaded guilty to violating 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A)(iii) pursuant to

a cooperation plea agreement. Hall had two prior felony drug convictions of which the Government

filed notice, therefore the mandatory statutory sentence for this offense also was life in prison



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without the possibility of release under 21 U.S.C. § 841(b)(1)(A). However, pursuant to Hall’s plea

agreement, the Government withdrew its notice of these convictions and agreed the sentencing range

would be between 10 years and life in prison, the statutory range for a defendant guilty of this

offense without any prior felony drug convictions. 21 U.S.C. § 841(b)(1)(A).

         Prior to his sentencing, Hall submitted a memorandum stating objections to enhancements

in the presentence report (“PSR”) under the United States Sentencing Guidelines (“Guidelines”).

Particularly, Hall challenged possession of a weapon under § 2D1.1(b)(1), being a leader in the

offense under § 3B1.1(a), and reckless endangerment during evasion of arrest under § 3C1.2, and

for the PSR’s failure to subtract points for acceptance of responsibility under § 3E1.1. United States

Sentencing Commission, Guidelines Manual (Nov. 2004). Hall also argued his criminal history

category (V) overstated the seriousness of his prior record and the likelihood he would commit other

crimes in the future. Hall requested a downward departure and a sentence of the statutory mandatory

minimum under 21 U.S.C. § 841(b)(1)(A), 10 years, which was below the advisory Guidelines

range.

         During Hall’s sentencing hearing, his attorney offered arguments in support of all the

objections raised in his sentencing memorandum, and the Government responded in opposition to

those objections. The district court then orally laid out its calculation of the Guidelines range, set

out in detail its analysis on each of Hall’s objections, with reference to testimony from co-defendant

Bowen’s trial, and denied all the objections except that on acceptance of responsibility, for which

it subtracted two points. The district court determined Hall’s offense level under the Guidelines was

43 and his criminal history category was V, yielding a sentencing range of 360 months to life

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imprisonment.

       The district court then again gave both parties an opportunity to present arguments. Hall’s

attorney noted although he had requested a downward departure from the Guidelines in his

sentencing memorandum, because the Guidelines were advisory he was now requesting a below-

Guidelines sentence. Hall’s attorney pointed to the fact Hall’s high criminal history category was

based on just two convictions Hall committed when he was 17, which was 15 years prior to the

sentencing hearing. He also noted Hall was remorseful and he had submitted numerous positive

letters on Hall’s behalf. He argued Hall had made the most of the time he had been incarcerated

during the pendency of this action, and had no problems with violence or authority figures at the jail.

Finally, he noted Hall had a supportive family. Hall addressed the court and stated he understood

the seriousness of his offense and accepted responsibility for it, although he also expressed his

unhappiness with others in the conspiracy who had cooperated with authorities for making him “look

like the bad guy” and the probation officer who wrote his presentence report for asking him about

pending charges against him. Finally, Hall asked for “another chance at life to be with my children

and my family” (JA at 477).

       The Government did not present additional argument at this time.

       The district court before issuing its sentence noted the nature of the type of drug trafficking

at issue in this case was dangerous and disruptive to communities, which was “ample reason for a

long sentence” (JA at 478). The district court also stated its belief Hall was a leader of the

conspiracy and enticed or manipulated Gill and Cannon to take part in the conspiracy, and that at

least one of whom was involved in a romantic relationship at the time and may have been motivated

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United States v. Bowen, et al.

to participate in the conspiracy by love for him rather than for money. The court further found a long

sentence would protect society by keeping Hall in prison so long he would be incapacitated from

drug dealing upon his release. The court addressed the danger created by Hall’s absconsion to North

Carolina after he learned he had been indicted, and the danger to and actual injury of others during

his evasion of arrest once officers found him there, as well as his possession of firearms during the

offense. The court did concede the firearms were not used, but found they could have been used by

Hall or others with whom he was dealing. The court finally noted “there are some redeeming

qualities in the defendant, as evidenced by the letters that I’ve received on his behalf. And I also

think that a sentence of a fixed term will give the defendant some incentive to be a better prisoner

while incarcerated” (JA at 479).

       The court sentenced Hall to 360 months imprisonment, which was the bottom of his range

under the Guidelines, stating its primary reason for doing so was Hall’s manipulation of others in

the conspiracy, and utilization of his charm to entice others who were weak to get involved in the

conspiracy.

       Bowen and Hall’s timely appeals followed.

                                 II. STANDARDS OF REVIEW

       A challenge to the sufficiency of the evidence is reviewed de novo. United States v. Tocco,

200 F.3d 401, 424 (6th Cir. 2000). When the denial of a motion for judgment of acquittal for

insufficiency of the evidence under Fed. R. Crim. P. 29 is challenged on appeal, “the standard of

review is 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 . . . .” United States v.

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United States v. Bowen, et al.

Clay, 346 F.3d 173, 176 (6th Cir. 2003) (quoting United States v. Jones, 102 F.3d 804, 807 (6th Cir.

1996). The appeals court “may conclude a conviction is supported by sufficient evidence even

though the circumstantial evidence does not remove every reasonable hypothesis except that of

guilt.” Id.

         Where a challenge to a sentence was not raised in the district court, the appeals court reviews

the district court’s sentence for plain error. United States v. Mahon, 444 F.3d 530, 532 (6th Cir.

2006).

         The plain-error inquiry is a four-step process under Rule 52(b) of the Federal Rules of

Criminal Procedure:

         First, we are to consider whether an error occurred in the district court. Absent any
         error, our inquiry is at an end. However, if an error occurred, we then consider if the
         error was plain. If it is, then we proceed to inquire whether the plain error affects
         substantial rights. Finally, even if all three factors exist, we must then consider
         whether to exercise our discretionary power under Rule 52(b), or in other words, we
         must decide whether the plain error affecting substantial rights seriously affected the
         fairness, integrity or public reputation of judicial proceedings.

Id. at 533 (quoting United States v. Thomas, 11 F.3d 620, 630 (6th Cir. 1993) (interpreting United

States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993)); citing United States v.

Jones, 108 F.3d 668, 670 (6th Cir. 1997) (en banc)).

                                           III. ANALYSIS

A.       Bowen

1.       Rule 29 Motion

         During his trial, Bowen very briefly moved for a judgment of acquittal under Fed. R. Crim.

P. 29 at the conclusion of the Government’s case in chief. The district court succinctly analyzed the

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United States v. Bowen, et al.

evidence presented at that point, found the evidence showed Bowen was a member of the conspiracy

charged, and denied the motion.

       Bowen renewed his motion at the close of the Government’s rebuttal proof (although only

“perfunctorily,” according to the Government’s brief; this portion of the transcript was not submitted

in the joint appendix for us to review). The motion was again denied.

       Because Bowen presented a defense, he has waived any objection to the denial of the motion

for judgment of acquittal he presented at the close of the Government’s case in chief. See United

States v. Black, 525 F.2d 668, 669 (6th Cir. 1975) (per curiam) (citing United States v. Calderon, 348

U.S. 160, 164, n. 1, 99 L. Ed. 202, 75 S. Ct. 186 (1954); United States v. Ambrose, 483 F.2d 742 (6th

Cir. 1973) (“The rule is settled that when a defendant introduces evidence, he waives any objection

to the denial of his motion to acquit at the close of the government's case.”)); accord. United States

v. Wagner, 382 F.3d 598, 611 (6th Cir. 2004). The appeals court may only review the second motion

for judgment of acquittal, and must consider not only the evidence in the Government’s case in chief,

but “the record as a whole and not the sufficiency of the government's case in chief.” Id.

       Bowen was charged with conspiracy to distribute more than 50 grams of crack cocaine in

violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A). To establish Bowen’s guilt of this crime,

the Government was required to prove (1) agreement to violate drug laws; (2) knowledge and intent

to join the conspiracy; and (3) participation in the conspiracy. United States v. Martinez, 430 F.3d

317, 330 (6th Cir. 2006) (citing United States v. Welch, 97 F.3d 142, 148-49 (6th Cir. 1996)).

       The agreement need not have been formal; a tacit understanding among the conspirators will

suffice. Id. (quoting United States v. Avery, 128 F.3d 966, 970-71 (6th Cir. 1997)). The existence

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United States v. Bowen, et al.

of a conspiracy “may be inferred from circumstantial evidence that can reasonably be interpreted as

participation in the common plan.” Id. (quoting Avery, 128 F.3d at 971). Once a conspiracy is

shown beyond a reasonable doubt, a defendant need only have a “slight” connection to it. Id.

(quoting Avery, 128 F.3d at 971). Additionally, a defendant’s knowledge of and participation in a

conspiracy may be inferred from his conduct and established by circumstantial evidence. Id. (citing

United States v. Salgado, 250 F.3d 438, 447 (6th Cir. 2001)).

a.     Evidence

       We will briefly summarize the evidence presented at Bowen’s trial.

(i)    Police Officers and Crime Lab Specialists

       Several police officers with the Kalamazoo (Michigan) Valley Enforcement Team testified

about an investigation of Oreanda Hall (a.k.a. “Renny”) that started in 2001. Officers executed

several search warrants on various residences in Kalamazoo. The first residence searched was

Paketta Cannon’s, at 1817 Shire Lane, where police found drug dealing paraphernalia (baggies,

digital scales, etc.), crack cocaine, a gun, and documents with Hall’s name on them. Several months

later, in February 2002, police searched another residence belonging to Cannon, 1427 Concord Place,

where they found handguns, ammunition, and a safe. Inside the safe were crack and powder cocaine,

digital scales, and a receipt with the name “Renny” on it.

       Also on this same day and into the early hours of the next morning, police searched a

residence belonging to Marlo Gill, 113 Wall, where police found crack cocaine in a car parked in

the driveway.

       On the same day the search of the Wall address was completed, officers visited Bowen at his

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United States v. Bowen, et al.

probation officer’s office. When asked where he was staying, Bowen started to say “536” but then

said “504 Clinton”, which was his mother’s residence.

       Later that same day, officers searched an apartment at 536 Bosker, and found drug dealing

paraphernalia (Pyrex containers known to be used to cook powder cocaine into crack, digital scales,

baggies, etc.), and a firearm and ammunition, as well as recent cable bills for service at the Bosker

address in the name of Bowen and an income tax return for Bowen that claimed a state homestead

property tax credit for renting a home at 536 Bosker. No cocaine was found at this address.

       Officers testified they did not see Bowen at any of these addresses when they searched them,

and only found the cable and tax documents related to him at the Bosker address, but no other

documents relating to him at the other residences.

       Several crime lab specialists also testified the substances seized from the residences were in

fact crack and powder cocaine in various quantities.

(ii)   Donald Gaddie

       Donald Gaddie, who at the time of his testimony was incarcerated on probation violation

charges relating to an earlier cocaine delivery conviction and was cooperating with the Government,

testified he knew Bowen because they had grown up in the same neighborhood in Kalamazoo. Hall

was Gaddie’s supplier of crack cocaine, which Gaddie then resold. Gaddie testified he pooled his

money with Curtis Shepard to buy crack from Hall. Gaddie would see Bowen with Shepard, and

said Bowen and Shepard shared an apartment on Bosker Street.

       Gaddie spent time at the apartment on Bosker every day, where he saw Hall and Shepard, and

saw Bowen cooking powder cocaine into crack, as well as crack being delivered and dealt out of the

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apartment. Gaddie saw Cannon and “Marlo” (Gill) deliver drugs for Hall to this apartment. Gaddie

saw Bowen and Shepard at the Bosker apartment every day, and he testified they both lived there.

However, Gaddie did not himself conduct any drug business with Bowen.

        Gaddie made phone calls while cooperating with the police to Shepard and Hall. He also

gave information to the police about the residences of Cannon and Gill, as well as the Bosker Street

residence, that led to the group of searches on those residences that occurred in February 2002.

        Gaddie testified he was not charged in this case or a state case because of his cooperation

with the police.

(iii)   Paketta Cannon

        Paketta Cannon, who was indicted in this case and at the time of her testimony had pleaded

guilty to conspiracy to distribute more than 50 grams of crack cocaine but had not yet been

sentenced, testified she was in a relationship with Hall during the time period of the conspiracy. Hall

lived with her at the 1817 Shire Lane address, which he used for drug activities, when he was in

Kalamazoo. She moved out of the Shire Lane address into an apartment at 1427 Concord Place, but

took Hall’s belongings with her to the Concord Place apartment, including the safe. Cannon would

deliver drugs and collect payment for Hall to and from Shepard, including to the Bosker Street

apartment, where she sometimes saw Bowen and Gaddie, but Cannon did not deliver drugs to

Bowen. Cannon believed Bowen resided at the Bosker Street apartment.

        Cannon also testified about all the co-defendants in this case, including Bowen, “running”

to North Carolina after they learned they had been indicted and warrants for their arrests had been

issued, where they resided with false identification for several months before being arrested.

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(iv)   T.D. Hill

       T.D. Hill, a Winston-Salem, North Carolina police officer, testified about arresting the co-

defendants (Hall, Cannon, and Bowen) in North Carolina. Hill specifically stated Hall fled from law

enforcement and he had to chase him to arrest him.

(v)    Marlo Gill

       Marlo Gill, who was indicted in this case and pleaded guilty to conspiracy and attempt to

distribute more than 50 grams of crack cocaine and had been sentenced at the time of her testimony,

testified she knew Hall. After Cannon’s house was raided in June 2001, Hall asked her to store his

drugs at her house, first at an address on South Burdick, then at 113 Wall. In addition to storing

drugs, Gill delivered drugs and collected payment for Hall to and from Gaddie and Shepard. Gill

would see Shepard and Bowen when she delivered drugs to the Bosker Street apartment. Gill also

saw Bowen driving Shepard once when she delivered drugs to Shepard, and saw Bowen drive Hall

around when she was transferring drugs or money with Hall. Gill testified the drugs police found

in the car in front of her house belonged to Hall. Around midnight on the evening her home was

searched, Gill went to the Bosker Street address and told Bowen, Shepard, and others her house had

just been searched, and everyone scattered. Gill did not ever deliver drugs to Bowen.

(vi)   Curtis Shepard

       Curtis Shepard, who was indicted in this case and pleaded guilty to conspiracy to distribute

more than 50 grams of crack cocaine and had been sentenced at the time of his testimony, testified

he obtained drugs from Hall, which he then resold. Shepard also testified he had known Bowen



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United States v. Bowen, et al.

since high school, and pooled his money to buy drugs with Gaddie and Bowen. Shepard also went

to Detroit to pick up drugs from Hall on several occasions, and Bowen went with him once. Bowen

lived with Shepard at the Bosker Street apartment, where he and Bowen would both cook powder

cocaine into crack, package crack for sale, and personally sell it to customers. Bowen rented the

apartment from his stepfather, Mac Jones1; Bowen and Shepard split the rent, but Bowen actually

paid the rent to Jones. Gill and Cannon sometimes delivered drugs to them and picked up money

they owed Hall. Shepard and Bowen were at the Bosker Street apartment when Gill came to tell

them her house had been searched, and everyone who was there left.

         After the Bosker Street apartment was searched, Shepard and Bowen no longer lived or dealt

drugs there, but they continued to deal drugs together on a daily basis by using their cell phones.

         Shepard had some trouble keeping the quantities he bought from Hall straight on cross

examination but clarified his statements on redirect.

(vii)    Bowen’s Witnesses

         Bowen put on several witnesses who testified in varying degrees of certainty that he lived

with his mother at 504 Clinton, not on Bosker Street, including Tamara Flowers, Bowen’s probation

officer; Mcherlich (“Mack”) Bowen, Bowen’s half-brother who lived at 504 Clinton during the

relevant time period; Mirietta Irving, a neighbor of 504 Clinton who also drove Bowen to work on

occasion; Lee Buchanan, Bowen’s stepfather; and Jean Buchanan-Bowen, Bowen’s mother. Some

witnesses testified they knew Bowen had rented the Bosker Street residence, but did not believe he


         1
        Although Shepard testified M ac Jones was Bowen’s stepfather, Mr. Jones himself later testified he was actually
Bowen’s half-brother’s father.

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United States v. Bowen, et al.

lived there. Some witnesses also testified Bowen had a full-time job during some portions of the

alleged conspiracy period. Additionally, Mcherlich (“Mac”) Jones, Bowen’s half-brother’s father,

testified he rented the upstairs apartment in the Bosker Street property he owned to Bowen, the

tenants in a downstairs apartment complained about the amount of traffic to the upstairs apartment,

and Bowen told him he had subleased it to Shepard. Jones never personally checked on who was

living in the apartment. Jones was prepared to evict whomever was living there, but the police

searched the property before he had a chance, and whoever was living there vacated it.

         The defense intended to call Hall to testify, but he indicated he would invoke his Fifth

Amendment right if called, and the defense chose not to call him as a witness.2 Bowen did not testify

on his own behalf.

b.       Discussion

         The evidence, viewed “in the light most favorable to the prosecution,” was more than

sufficient such that “any rational trier of fact could have found the essential elements of the crime

. . . .” Clay, 346 F.3d at 176.

         Co-defendant Donald Gaddie testified he saw Bowen and co-defendant Curtis Shepard cook

powder cocaine into crack at the Bosker residence, and also that he saw Bowen sell cocaine. Co-

defendants Paketta Cannon and Marlo Gill testified they delivered drugs for Hall to Shepard at the


         2
           Bowen for the first time at oral argument requested a new trial in order to call Hall again to testify on Bowen’s
behalf, in the hopes he would not invoke his Fifth Amendment right now that he has been sentenced. The Government
objected, noting this argument was not raised in Bowen’s briefs.
          This argument was waived by Bowen’s failure to raise it at any time before oral argument. See United States
v. Bender, 265 F.3d 464, 475 (6th Cir. 2001) (refusing to consider argument under Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) raised for first time at oral argument without any written submission
regarding the merits of the argument).

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Bosker residence, where they believed Bowen lived because they saw him there. Gill also testified

she saw Bowen driving Shepard once when she delivered drugs to Shepard, and saw Bowen driving

Hall around when she was transferring drugs or money with Hall.

       The strongest witness against Bowen was Shepard, who testified he and Bowen lived together

at the Bosker apartment, pooled their money to buy cocaine from Hall, drove to Detroit together once

to obtain cocaine from Hall, cooked powder cocaine into crack together, packaged crack for sale, and

personally sold crack and powder cocaine to customers, both from the Bosker residence and using

their cell phones.

       Government witnesses’ testimony regarding Bowen’s participation in the conspiracy was

largely consistent, and they corroborated one another’s testimony. None was seriously discredited

on cross examination, except as to the fact they were testifying in hopes of reduced sentences for

their participation in this same conspiracy. Further, documents found at the Bosker residence,

including tax returns and cable bills in his name, linked Bowen to that residence and further

corroborated the co-conspirators’ testimony. Even though drugs were not found at the Bosker

residence, officers did find two Pyrex containers consistent with the cooking of powder cocaine into

crack, which witnesses testified they saw Bowen do at this residence. Bowen’s witnesses testified

largely about his living situation, rather than his lack of involvement in the drug trade. Even if all

of Bowen’s witnesses were believed and he did actually lay his head at his mother’s house at night,

they did nothing to refute the testimony he cooked crack and dealt drugs out of the Bosker apartment;

several of his witnesses in fact testified they knew he had rented that apartment.

       Bowen in his appeal brief argues “the only evidence of Bowen’s involvement came from

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alleged accomplices. Law enforcement found no drugs on Bowen nor at the apartment the

Government alleges he lived in. There was scant evidence that Bowen even lived at the apartment;

in fact, numerous witnesses testified that he lived elsewhere with his mother” (Bowen’s brief at 14).

These points were reiterated at oral argument. However, the testimony of an accomplice, even if

uncorroborated, can sustain a guilty verdict. United States v. Spears, 49 F.3d 1136, 1140 (6th Cir.

1995), abrogated on other grounds, United States v. Wells, 519 U.S. 482, 137 L. Ed. 2d 107, 117 S.

Ct. 921 (1997); see also United States v. Stubbs, 11 F.3d 632, 638 (6th Cir. 1993); United States v.

Lee, 991 F.2d 343, 349 (6th Cir. 1993). United States v. Gallo, 763 F.2d 1504, 1518 (6th Cir. 1985),

cert. denied sub nom. Graewe v. United States, 474 U.S. 1069, 88 L. Ed. 2d 800, 106 S. Ct. 828

(1986).

          Bowen’s accomplices’ testimony was strong and was corroborated by one another’s

testimony and physical evidence found at the Bosker residence and others.

          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 . . . .” United States v. Clay, 346 F.3d

173, 176 (6th Cir. 2003). Therefore the denial of Bowen’s motion for judgment of acquittal pursuant

to Rule 29 is AFFIRMED.

2.        Sentencing in Violation of Booker and Blakely

          Bowen presented a lengthy argument in his brief regarding the illegality of his sentence in




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light of the Supreme Court’s holdings in Booker, 543 U.S. 220, and Blakely, 542 U.S. 296.3

However, he conceded at oral argument circuit precedent is contrary to his argument, and presented

it on the briefs merely to preserve it as an issue if this circuit’s precedent changes.

         Bowen in this argument asserts Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153

L. Ed. 2d 524 (2002), was implicitly overturned by the Booker and Blakely decisions. Harris held

the subsections in 18 U.S.C. § 924(c) that raise the statutory mandatory minimum sentence for

brandishing or discharging a firearm were sentencing factors that may be found by a preponderance

of the evidence, rather than elements of the crime that must be found by the higher beyond a

reasonable doubt standard, as they did not raise the statutory maximum for the crime. 536 U.S. at

557. Further, Harris held § 924(c), which allowed for a two-year increase in a defendant’s minimum

sentence based on a judicial finding a weapon was brandished, did not violate the Fifth or Sixth

Amendments. Id. at 568. Booker, of course, held the Sixth Amendment prevents judges from

making factual determinations, other than the fact of a prior conviction, that increase a defendant’s

sentence beyond the maximum authorized by the facts established by a plea of guilty or a jury verdict

under the mandatory United States Sentencing Guidelines, and its remedy was to hold the Guidelines



         3
           In our own research in preparation for oral argument, we discovered this section of Bowen’s brief, close to 20
pages, was copied almost verbatim from a published district court decision, United States v. Malouf, 377 F. Supp. 2d
315 (D. Mass. 2005) (Hall’s Brief at 15-35). Malouf was not even cited by Bowen, much less was it notated in any way
that would indicate the argument was lifted largely word for word from it. W hen our discovery of this outright plagiarism
was called to the attention of Bowen’s counsel, Robert Little, at oral argument, he did little to explain it, stating only he
did not cite the case because it does not constitute binding precedent in this circuit, and he copied from it verbatim
because he would lose the essence of the argument if he changed even one word.
          W hile our legal system stands upon the building blocks of precedent, necessitating some amount of quotation
or paraphrasing, citation to authority is absolutely required when language is borrowed.
          W e made it very clear to Mr. Little during oral argument this behavior is completely unacceptable and reiterate
it here as an admonishment to all attorneys tempted to “cut and paste” helpful analysis into their briefs.

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to be advisory rather than mandatory. 543 U.S. 220.

       Bowen argues after Booker, Harris’s distinction between mandatory minimums and statutory

maximums is no longer good law, and the Sixth Amendment now requires the drug quantity (in

excess of 50 grams) attributable to him and his status as a double felon to be submitted to the jury

and determined beyond a reasonable doubt, as both of these findings raise the mandatory minimum

sentence he faces.

       The Ninth and Seventh Circuits and several district courts have explicitly held Harris was

not overruled by Booker or Blakely. United States v. Dare, 425 F.3d 634, 641 (9th Cir. 2005) (“We

agree that Harris is difficult to reconcile with the Supreme Court’s recent Sixth Amendment

jurisprudence, but Harris has not been overruled.”); United States v. Jones, 418 F.3d 726, 732 (7th

Cir. 2005) (“Under Harris, which the Supreme Court did not disturb in Booker, imposition of the

. . . mandatory minimum sentence for a violation of 924(c)[] . . . did not violate the Sixth

Amendment.”); United States v. Duncan, 413 F.3d 680, 683 (7th Cir. 2005) (“Nothing in Booker or

Blakely suggests that the Court reconsidered, much less overruled, its holding in Harris.”); United

States v. Perkins, 421 F. Supp. 2d 209, 218-219 (D. Maine 2006) (“The Supreme Court has never

formally overruled Harris and Malouf appears to be the only decision against its continuing

validity.”); United States v. Ezell, 417 F. Supp. 2d 667, 671 (D. Pa. 2006) (“This Court concludes

that, although the reasoning of Harris . . . has been undermined by Booker and Blakely, it is not the

role of this Court to overrule a decision of the Supreme Court, or even to anticipate such an

overruling by the Supreme Court.”).



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         However, this appears to be an issue of first impression in this circuit.4 We will address

Bowen’s arguments separately. As none of them was raised during the district court proceedings,

they are reviewed for plain error. Mahon, 444 F.3d at 532.

a.       Prior Convictions

         Bowen first argues, after Booker, the Sixth Amendment requires his status of a double felon

must be submitted to the jury and determined beyond a reasonable doubt, as this finding raises the

mandatory minimum sentence he faces.

         In Apprendi v New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the

Supreme Court held a trial court’s factual findings regarding prior convictions do not implicate the

Sixth Amendment. 530 U.S. at 488. Further, the Sixth Circuit has concluded Booker implicitly

adopted Apprendi’s understanding regarding prior convictions. See United States v. Barnett, 398

F.3d 516, 525 (6th Cir. 2005)(“there is no language in Booker suggesting that the Supreme Court,



         4
           In United States v. Harris, 397 F.3d 404, 414 (6th Cir. 2005), the Sixth Circuit addressed the type of firearm
enhancement in 18 U.S.C. § 924(c) and held this was an element of the crime that must be charged to the jury and found
beyond a reasonable doubt, unlike the brandishing or discharging enhancements found to be sentencing factors by the
Supreme Court in Harris v. United States. However, the Sixth Circuit expressly declined to “address the general
constitutionality of mandatory-minimum sentences imposed through judicial fact-finding,” noting that was “a practice
explicitly approved by the Supreme Court prior to Booker when traditional sentencing factors, rather than elements, are
involved,” and citing Harris for this proposition. Id. The Sixth Circuit further pointed out its holding was narrow and
applied only to the § 924(c) firearm-type enhancement. Id.
          In a recent unpublished case, the Sixth Circuit reiterated Harris’s holding “only exposure to a higher maximum
sentence, not the triggering of a mandatory minimum, will necessarily affect a defendant's Sixth Amendment rights.”
United States v. Diaz, 2006 W L 1228696 at *4 (6th Cir. May 8, 2006) (unpublished) (citing United States. v. Copeland,
321 F.3d 582, 602 n.5 (6th Cir. 2003)(“W e read [the Harris] opinion to indicate that a majority of the Justices agree that
Apprendi [v. New Jersey 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)],does not apply to mandatory
minimum sentences, and thus consider that holding to be binding.”)). However, that case did not explicitly consider
Booker or Blakely’s impact on Harris.
          Additionally, the Sixth Circuit has recently quoted Harris approvingly in discussing mandatory minimums under
18 U.S.C. § 924(c) although, again, it did not consider Booker or Blakely’s impact on that decision. See United States
v. Van Hoosier, 442 F.3d 939, 944 (6th Cir. 2006).

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Nos. 05-1706, 05-1795
United States v. Bowen, et al.

as part of its remedial scheme adopted in that case, intended to alter the exception to Apprendi

allowing district courts to consider the fact and nature of prior convictions without submitting those

issues to the jury”).

        The district court here did just what Apprendi, even after Booker, allowed it to do, in finding

Bowen had at least two prior felony convictions that qualified for a higher mandatory minimum

under § 841(b)(1)(A). Therefore the district court did not commit plain error in finding Bowen had

committed at least two prior felonies that, combined with the drug quantity of which he was found

guilty, made him eligible for the mandatory minimum sentence of life imprisonment under 21 U.S.C.

§ 841(b)(1)(A).

b.      Drug Quantity

        Bowen next argues, after Booker, the Sixth Amendment requires the drug quantity for which

he is held responsible (in excess of 50 grams) to be submitted to the jury and determined beyond a

reasonable doubt, as this finding raises the mandatory minimum sentence he faces.

        This argument is without import, because the drug quantity used in sentencing of more than

50 grams of crack cocaine actually was submitted to a jury and found beyond a reasonable doubt.

The verdict form specifically asked the jury whether Bowen was guilty of “the offense of conspiracy

to distribute more than 50 grams of a mixture or substance containing a detectable amount of cocaine

base (crack) . . .” (JA at 78). Even if Bowen prevailed on this argument, he would be without

remedy as the district court already did what he is now seeking.

        Therefore, the district court did not commit plain error when it sentenced Defendant Bowen

to the mandatory minimum sentence of life imprisonment required where a defendant was convicted

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Nos. 05-1706, 05-1795
United States v. Bowen, et al.

of a crime involving in excess of 50 grams of crack, in conjunction with his two prior felony

convictions.

c.     Due Process Argument

       Bowen also argues the due process clause of the Fifth Amendment requires application of

the beyond a reasonable doubt standard for drug quantity. However, he failed to flesh out this

argument thoroughly enough in his brief for this court to evaluate it. Further, as noted above, the

quantity that triggered the mandatory minimum sentence at issue here was in fact submitted to the

jury and found beyond a reasonable doubt, so even if he prevailed on this argument it would not

merit a reversal and remand.

       For all the above reasons, the district court did not commit any error in sentencing Defendant

Bowen and therefore there was no plain error. Mahon, 444 F.3d at 532.

d.     Harris

       In conclusion, we see no reason to hold Harris has been implicitly overruled by Booker and

Blakely here, particularly considering one of the bases for the mandatory minimum life sentence,

Bowen’s prior convictions, has been upheld as a sentencing factor a judge may find without

submission to a jury, and the other basis for his sentence, the drug quantity, actually was submitted

to and found by a jury beyond a reasonable doubt. If there were a case in which to consider whether

Harris’s reasoning has been overruled by Booker and Blakely, this is not it. We AFFIRM Bowen’s

sentence.

B.     Hall

       Hall contends his sentence was procedurally unreasonable and should be vacated because the

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United States v. Bowen, et al.

district court did not adequately address the mitigating factors he submitted in requesting a below-

Guidelines sentence.

       At sentencing, Hall argued the criminal history category assigned to him overrepresented the

seriousness of his record and likelihood of future offenses, as well as that he had given the

Government valuable assistance, and the district court “did not respond to these arguments,”

therefore an error was committed. Hall also argues his sentence was not reasonable, because it is

greater than necessary to comply with relevant sentencing purposes under 18 U.S.C. § 3553(a). Hall

did not raise this argument at sentencing before the district court, therefore it is reviewed for plain

error. Mahon, 444 F.3d at 532.

1.     Waiver

       The Government asserts this argument was waived by Hall’s failure to object to the sentence

before the district court when it indicated what sentence would be imposed, therefore the appeals

court cannot review it even for plain error. See United States v. Olano, 507 U.S. 725, 733-34 (1993).

However, the United States Supreme Court in Olano distinguished between waiver, or “intentional

relinquishment or abandonment of a known right,” and forfeiture, “the failure to make the timely

assertion of a right.” Id. at 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58

S. Ct. 1019 (1938)).

       The Government does not give any support for its argument Defendant’s failure to raise this

argument at sentencing was a waiver, with the consequence that the appeals court cannot even

review it for plain error, rather than a forfeiture, with a less drastic consequence. Upon our review

of the record, it appears Hall merely failed to raise this issue at sentencing rather than in any way

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Nos. 05-1706, 05-1795
United States v. Bowen, et al.

intentionally relinquished it. That constitutes forfeiture, rather than waiver, therefore the appeals

court may review this claim for plain error. See United States v. Osborne, 402 F.3d 626, 630 (6th

Cir. 2005) (distinguishing forfeiture from waiver; evaluating defendant’s actions as waiver rather

than forfeiture where issue was raised in district court and defendant executed a document purporting

to waive constitutional right at issue).

2.     Reasonableness of Sentence

a.     Reasonableness Review

       Since the United States Supreme Court’s decision in Booker, district judges have been

afforded considerable discretion in determining the sentence of a criminal defendant. In Booker, the

Supreme Court made the Guidelines advisory by excising 18 U.S.C. § 3553(b), the provision of the

Sentencing Reform Act that made the Guidelines mandatory. 543 U.S. at 258- 65. However, the

Supreme Court also held “the district courts, while not bound to apply the Guidelines, must consult

those Guidelines and take them into account when sentencing.” Id. at 264. Now, sentencing judges

must determine the sentence by application of the factors set forth 18 U.S.C. § 3553(a) but must also

give consideration to the Guidelines (including the Guidelines sentencing range). Id. at 244-45, 258.

Further, section 3553(a) contains a “parsimony” provision that commands sentencing judges to

impose a sentence “sufficient, but not greater than necessary, to comply with the purposes set forth

in paragraph (2),” which provides sentencing judges a list of goals or factors they must consider in




                                                -22-
Nos. 05-1706, 05-1795
United States v. Bowen, et al.

imposing a sentence. 18 U.S.C. § 3553(a).5

       “[W]hen a defendant challenges a district court’s sentencing determination, [this Court is]

instructed to determine ‘whether [the] sentence is unreasonable.’” United States v. Webb, 403 F.3d

373, 383 (6th Cir. 2005), cert. denied, -- U.S. --, 126 S. Ct. 1110, 163 L. Ed. 2d 919 (2006) (quoting


       5
        Section 3553(a) reads, in its entirety,
       (a) Factors to be considered in imposing a sentence. The court shall impose a sentence sufficient, but
       not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.
       The court, in determining the particular sentence to be imposed, shall consider--
         (1) the nature and circumstances of the offense and the history and characteristics of the defendant;
         (2) the need for the sentence imposed--
            (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just
       punishment for the offense;
           (B) to afford adequate deterrence to criminal conduct;
           (C) to protect the public from further crimes of the defendant; and
          (D) to provide the defendant with needed educational or vocational training, medical care, or other
       correctional treatment in the most effective manner;
         (3) the kinds of sentences available;
         (4) the kinds of sentence and the sentencing range established for--
           (A) the applicable category of offense committed by the applicable category of defendant as set
       forth in the guidelines--
             (i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States
       Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether
       such amendments have yet to be incorporated by the Sentencing Commission into amendments issued
       under section 994(p) of title 28); and
              (ii) that, except as provided in section 3742(g) [18 USCS § 3742(g)], are in effect on the date
       the defendant is sentenced; or
          (B) in the case of a violation of probation or supervised release, the applicable guidelines or policy
       statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United
       States Code, taking into account any amendments made to such guidelines or policy statements by act
       of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing
       Commission into amendments issued under section 994(p) of title 28);
         (5) any pertinent policy statement--
           (A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States
       Code, subject to any amendments made to such policy statement by act of Congress (regardless of
       whether such amendments have yet to be incorporated by the Sentencing Commission into
       amendments issued under section 994(p) of title 28); and
           (B) that, except as provided in section 3742(g) [18 USCS § 3742(g)], is in effect on the date the
       defendant is sentenced.
         (6) the need to avoid unwarranted sentence disparities among defendants with similar records who
       have been found guilty of similar conduct; and
         (7) the need to provide restitution to any victims of the offense.



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United States v. Bowen, et al.

Booker, 543 U.S. at 261) (third alteration in original).

       Hall makes no objection to the district court’s resolution of his objections to or the

calculation of his Guidelines range. However, Hall takes the district court to task for “perform[ing]

little analysis beyond the advisory Guideline calculations” and failing to “explain why a 360 month

sentence was not greater than necessary to fulfill the sentencing factors” or respond to each and every

argument in his sentencing memo (Hall’s Brief at 30). Thus, he challenges the procedural

reasonableness, rather than the substantive reasonableness, of his sentence. See United States v.

McBride, 434 F.3d 470, 475 n.3 (6th Cir. 2006) (reasonableness review entails both substantive and

procedural elements) (citing Webb, 403 F.3d at 383-85 (procedural reasonableness review requires

consideration of “. . . the procedures employed by the district court in reaching its sentencing

determination.”)).

       A sentence within the applicable advisory Guidelines range is entitled to a rebuttable

presumption of reasonableness. United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) (“We

now join several sister circuits in crediting sentences properly calculated under the Guidelines with

a rebuttable presumption of reasonableness.”). As Hall was sentenced at the bottom of the

Guidelines range, which neither party now asserts was improperly calculated, his sentence is entitled

to this presumption of reasonableness. Id. However, the court’s inquiry does not end there; it must

still evaluate the district court’s sentencing procedure for reasonableness. McBride, 434 F.3d at 475

n. 3; see also United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006) (even where district court

properly calculated and imposed a within-Guidelines sentence, its “consideration and analysis of the

factors listed in [18 U.S.C.] § 3553(a)” must be reviewed for reasonableness).

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Nos. 05-1706, 05-1795
United States v. Bowen, et al.

       A district court must articulate sufficient reasoning for its sentence in order for the appeals

court to give it meaningful review, even where the sentence is within the applicable Guidelines

range. United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006); United States v. Richardson,

437 F.3d 550, 554 (6th Cir. 2006). The rebuttable presumption of reasonableness does not relieve

the district court of its obligation to consider the § 3553(a) factors and comply with the parsimony

provision in § 3553(a)(2). Foreman, 436 F.3d at 644. But the Sixth Circuit has noted “‘although

explicit mention of [the § 3553(a) factors] may facilitate review, this court has never required the

“ritual incantation” of the factors to affirm a sentence.’” Williams, 436 F.3d at 709 (6th Cir. 2006)

(quoting United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005)); accord, e.g., United States

v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005) (“The court need not recite these factors but must

articulate its reasoning in deciding to impose a sentence in order to allow for reasonable appellate

review.”); United States v. McClellan, 164 F.3d 308, 310 (6th Cir. 1999) (noting there is no

“requirement that a district court make specific findings relating to each of the factors considered”);

see also United States v. Harness, – F.3d –, 2006 WL 1976040 at *5 (6th Cir. 2006) (finding

sentence reasonable where district court noted it had received a psychological report and letters from

the defendants’ family members, stated it considered two specific § 3553(a) factors as well as all the

others, and sentenced the defendant to the middle of the Guidelines range).

       A district court must consider, on the record, any “particular argument” a defendant raises

for a lower sentence, and “explain the basis for rejecting it.” Richardson, 437 F.3d at 554. However,

the presumption of reasonableness is not lost “whenever a district judge does not explicitly address

every defense argument for a below-Guidelines sentence. Otherwise, the procedural reasonableness

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Nos. 05-1706, 05-1795
United States v. Bowen, et al.

review will become appellate micromanaging of the sentencing process.” Jones, 445 F.3d at 871.

Where the district court considers the applicable Guidelines range and § 3553(a) factors, and

articulates its reasons for the sentence imposed, the sentence will be found reasonable. Id. (quoting

Webb, 403 F.3d at 385).

b.      Procedural Reasonableness of Sentence

        As outlined in detail above, after entertaining extensive argument from both Hall and the

Government, the district court fully laid out the basis for its rulings on each of Hall’s objections.

The district court also showed its consideration of the § 3553(a) factors in outlining the basis for his

sentence. Although it did not explicitly refer to its reasons for the sentence imposed as §3553(a)

factors, it did point to the nature of the type of drug trafficking at issue in this case and its effect on

society, Hall’s enticement or manipulation of two women to take part in the conspiracy, protection

of society by a long sentence that would effectively incapacitate Hall from drug dealing when he is

released, the danger created by Hall’s absconsion to North Carolina after indictment and evasion of

arrest, and Hall’s possession of firearms during the offense. This shows clear consideration of the

§ 3553(a) factors. The district court did acknowledge “there are some redeeming qualities in the

defendant” but ultimately found a sentence within the Guidelines was appropriate due to Hall’s

manipulation of weak persons to participate in the conspiracy (JA at 479).

        The district court’s ruling more than complies with the requirement a district court articulate

its reasoning in order to allow for meaningful appellate review. See Richardson, 437 F.3d at 554

(“The sentencing hearing transcript reveals that the district court articulated and explained its reasons

for sentencing [defendant] to a term at the higher end of the Guidelines range.”). Further, the district

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Nos. 05-1706, 05-1795
United States v. Bowen, et al.

court met its burden of addressing the defendant’s “particular argument[s]” for a lower sentence, and

“explain[ed] the basis for rejecting [them] . . .” when it thoroughly discussed his objections and

acknowledged it had considered the mitigating evidence he presented.6 Richardson, 437 F.3d at 554.

To require more of sentencing courts than this court did would violate the principle set out in Jones,

that a district court need not “explicitly address every defense argument for a below-Guidelines

sentence.” 445 F.3d at 871.

       Therefore, we hold the district court’s sentence imposed on Hall was reasonable. Webb, 403

F.3d at 383. Hall has not shown the district court made any error in his sentencing such that it

committed a plain error. Mahon, 444 F.3d at 532.

                                       IV. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s denial of Bowen’s motion under

Rule 29 and AFFIRM both Bowen’s and Hall’s sentences.




       6
        The arguments in favor of a below-Guidelines sentence consisted only of noting Hall’s
criminal history was based on rather old convictions he obtained at a young age and his good
behavior while incarcerated during this case, as well as the facts he was remorseful and accepted
responsibility for the offense, and had a supportive family.

                                                -27-
