                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0345n.06

                                           No. 17-6492


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                      )                                  FILED
                                                )                             Jul 08, 2019
        Plaintiff-Appellee,                     )                        DEBORAH S. HUNT, Clerk
                                                )
 v.                                             )
                                                      ON APPEAL FROM THE UNITED
                                                )
                                                      STATES DISTRICT COURT FOR THE
 MATTHEW SHAFFER,                               )
                                                      EASTERN DISTRICT OF KENTUCKY
                                                )
        Defendant-Appellant.                    )
                                                )
                                                )

       BEFORE: MERRITT, DAUGHTREY, and STRANCH, Circuit Judges

       MARTHA CRAIG DAUGHTREY, Circuit Judge. In 2016, Matthew Shaffer organized

and executed two distinct but related conspiracies to distribute methamphetamine. The first

occurred between June and August of that year, during which time Shaffer and various companions

made three trips from Kentucky to California in order to collect and bring back large quantities of

crystal methamphetamine. The second conspiracy took place months later while Shaffer was

incarcerated at Boone County Detention Center. As a result, Shaffer was convicted in federal court

of five charges related to the possession and distribution of methamphetamine and two charges

related to the possession of firearms. The district court sentenced Shaffer to 420 months’

imprisonment. Shaffer appeals his convictions and sentence, alleging that the district court erred

by: (1) denying his motion to suppress evidence and denying a related evidentiary hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978); (2) refusing to provide separate trials for

each conspiracy; (3) declining to compel disclosure of the identity of a confidential informant;
No. 17-6492, United States v. Shaffer


(4) admitting certain opinion and fact testimony into the record; (5) refusing to grant a mistrial;

(6) denying his Rule 29 motion for a judgment of acquittal; and (7) imposing a procedurally and

substantively improper 420-month prison sentence. Shaffer has not established sufficient evidence

of legal error or prejudice to support any of these claims. We therefore AFFIRM his convictions

and sentence.

                     FACTUAL AND PROCEDURAL BACKGROUND

The California Conspiracy

       This case begins in Northern Kentucky, where Matthew Shaffer, a longtime ranking

member of the motorcycle gang the Iron Horsemen, lived and conducted business. Between June

and August of 2016, Shaffer traveled three times from Kentucky to Los Angeles, California. On

the first of these visits, he traveled alone, but on his second and third visit he was accompanied by

various friends and associates, including his then-girlfriend Abigail Wilder. During each trip,

Shaffer and his companions returned to Kentucky from California with large amounts of crystal

methamphetamine, totaling as much as two-and-a-half pounds.

       Sometime in August 2016, the Northern Kentucky Drug Strike Force received a tip from

an unnamed confidential informant about Shaffer’s involvement with the Iron Horsemen and drug

trafficking, and the location of Shaffer’s home on High Street in Walton, Kentucky. Because the

informant had previously provided accurate information to the Federal Bureau of Investigation,

the Strike Force ruled the tip credible. Strike Force officers decided to do a “trash pull”—an

investigative method in which officers collect and search some or all of the garbage left on the

curb outside of a residence.

       In the early morning of August 24, 2016, two Strike Force officers surveilled Shaffer’s

residence for approximately 15 minutes before conducting the trash pull. Their search produced



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No. 17-6492, United States v. Shaffer


mail addressed to Shaffer, a grocery receipt, and a plastic bag that contained a small amount of a

substance confirmed by a field test to be crystal methamphetamine. The next day, having secured

a warrant, the officers, as well as other members of the Strike Force, set up surveillance around

the High Street residence. Shortly after Shaffer arrived home, the officers searched the house.

They uncovered a black case containing a plastic bag holding 184 grams of what was later

determined to be crystal methamphetamine, $8,920.00 in cash, paperwork concerning the purchase

and title of a motorcycle belonging to Shaffer, a digital scale, a rifle, a loaded handgun, a blender

covered in unidentified white residue, Inositol (a substance often used to cut methamphetamine),

a bullet proof vest, and a locked safe. Within the safe, the officers found a magazine loaded with

hollow-point “critical defense” ammunition, assorted legal documents belonging to Shaffer, and

various differently-sized plastic baggies—some of which matched the bag found during the trash

pull.

        Immediately following the search, the officers arrested Shaffer. He was incarcerated at the

Boone County Detention Center and assigned to cell 1209, which houses all inmates who have

racist tattoos or who express to the jailhouse officers that they are racist.

The Jailhouse Conspiracy

        While detained, Shaffer became known as the leader of cell 1209 and made the

acquaintance of several other prisoners, including Michael Howell. Following Shaffer’s arrival at

the jail, Howell was released but, because he had nowhere to go, “got [him]self arrested” so that

he could return to jail. Howell was once again placed in cell 1209, presumably because of his

manifest racism. It seems that, realizing Howell could leave the jail, return, and be guaranteed an

assignment in cell 1209, Shaffer devised a plan to bring contraband into the jail. Shaffer would




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No. 17-6492, United States v. Shaffer


arrange for payment of Howell’s bond so that, upon Howell’s release, he could purchase

contraband items and smuggle them back into the jail.

          In October 2016, Shaffer and Howell executed their plan, but a few days after returning to

the jail and delivering the contraband—including two cell-phone watches, tobacco, marijuana, and

approximately ten grams of methamphetamine—Howell confessed to the guards his role in the

conspiracy. The Detention Center officers searched cell 1209 and found the watches. They also

searched each inmate individually and, when conducting a search of Shaffer, found a small baggie

containing what was later confirmed to be 98 percent pure crystal methamphetamine.

Procedural Background and Trial

          Shaffer was eventually indicted on seven charges related to the California plot and the

Boone County conspiracy. The first four counts arose from the California plot:

   I.        Conspiring to distribute, and possess with intent to distribute, 50 grams or more
             of methamphetamine, in violation of 21 U.S.C. § 846;
   II.       Possessing with intent to distribute 50 grams or more of actual
             methamphetamine, in violation of 21 U.S.C. § 841(a)(1);
   III.      In furtherance of the drag-trafficking crimes charged in Counts I and II,
             possessing a firearm, in violation of 18 U.S.C. § 924(c)(1);
   IV.       Having been convicted of a felony, possessing a firearm in and affecting
             interstate and foreign commerce, in violation of 18 U.S.C. § 922(g)(1);


Counts five through seven arose from the actions at Boone County Detention Center:

   V.        Conspiring to distribute, and possess with an intent to distribute, a mixture or
             substance containing methamphetamine, in violation of 21 U.S.C. § 846;
   VI.       Aiding and abetting the distribution of a mixture or substance containing
             methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2;
   VII.      Possessing with intent to distribute a mixture or substance containing
             methamphetamine, in violation of 21 U.S.C. § 841(a)(1).


          Shaffer moved the district court to suppress evidence obtained during the August 25, 2016,

search of his residence on High Street, and requested a hearing pursuant to Franks v. Delaware,



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No. 17-6492, United States v. Shaffer


438 U.S. 154 (1978). The district court did not grant either request. The district court also denied

Shaffer’s motion to sever the Boone County conspiracy charges from those charges dealing with

the California plot. Finally, the district court declined to order disclosure of the confidential

informant’s identity. At trial, Shaffer unsuccessfully renewed his motions for severance and for

compulsion of the informant’s identity.

       Following a five-day trial, the district court denied Shaffer’s motion for a judgment of

acquittal as to the firearms charges. The jury then convicted Shaffer of Counts 1 through 6 and of

a lesser-included charge on Count 7. The district court sentenced Shaffer to 420 months in prison.

Shaffer now appeals his convictions and sentence.

                                          DISCUSSION

       Shaffer raises several issues on appeal. In addition to arguing that his sentence is both

procedurally and substantively improper, he challenges the denials of his motions to suppress, for

a Franks hearing, for severance, to compel disclosure of the informant’s identity, and for acquittal.

Additionally, Shaffer alleges that the district court should have declared a mistrial after a

cooperating witness testified that Shaffer threatened the prosecutor in the case, and he claims that

the district court improperly admitted expert testimony from a police officer and lay testimony

from Shaffer’s girlfriend, Abigail Wilder. We review each claim in turn.

Franks Hearing and Motion to Suppress

       In Franks v. Delaware, the Supreme Court provided that if a defendant alleges that the

affidavit supporting a search warrant issued against him manifested “deliberate falsehood or . . .

reckless disregard for the truth,” and substantiates his allegations with an offer of proof, the

defendant is entitled to an evidentiary hearing to explore the veracity of the affidavit.

438 U.S. 154, 171–72 (1978). A defendant must make two showings as part of this offer of proof,



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No. 17-6492, United States v. Shaffer


(1) “that the affiant knowingly and intentionally, or with reckless disregard for the truth, included

a false statement or material omission in the affidavit” and (2) “that the false statement or material

omission is necessary to the probable cause finding in the affidavit.” United States v. Pirosko, 787

F.3d 358, 369 (6th Cir. 2015).

       Shaffer claims that he was entitled to a Franks hearing because the affidavit underlying the

search warrant issued before the High Street search excluded various details. In addition to his

request for a Franks hearing, Shaffer moved to suppress the evidence discovered as a result of the

allegedly-deficient warrant. The district court denied his motion to suppress and his request for a

Franks hearing. In considering these denials, we review the district court’s factual findings for

clear error and its conclusions of law de novo. Id.

       In support of his Franks claim, Shaffer identifies several seemingly irrelevant details

excluded from the affidavit. However, we need not consider their materiality because Shaffer has

not made any showing—beyond his bare-bones, conclusory allegations—that the affiant excluded

this information “with an intention to mislead.” Mays v. City of Dayton, 134 F.3d 809, 816 (6th

Cir. 1998) (emphasis deleted). A showing of the affiant’s knowledge or intentionality is a

prerequisite to establishing entitlement to a Franks hearing. See United States v. Young, 847 F.3d

328, 349 (6th Cir. 2017); United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990). Without

such a showing, the district court was not required to provide Shaffer with an evidentiary hearing.

Moreover, our case law requires that establishing entitlement to a Frank hearing requires a

defendant to show that “probable cause does not exist absent the challenged statements.” Bennett,

905 F.2d at 934. Shaffer also failed to meet this burden.

       Shaffer premises his motion-to-suppress claim on the same errors he identified in seeking

a Franks hearing, arguing that the incorrect and incomplete information should be discarded from



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No. 17-6492, United States v. Shaffer


the affidavit. This “excision,” in Shaffer’s view, renders the affidavit insufficient to establish

probable cause. However, as we have repeatedly stated, an “affidavit is judged on the adequacy

of what it does contain, not on what it lacks, or what a critic might say should have been added.”

United States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008) (quoting United States v. Allen, 211

F.3d 970, 975 (6th Cir. 2000)). The affidavit in Shaffer’s case provided enough information to

establish the confidential informant’s reliability by explaining the informant’s prior relationship

with the FBI. Additionally, the affiant corroborated the information with research, surveillance,

and the trash pull. Compare Martin, 526 F.3d at 936–37 (finding assertion of previously provided

accurate information sufficient to establish reliability, especially when corroborated by an

independent investigation) with United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005)

(finding affidavit insufficient to establish probable cause where affiant made “no averments about

the reliability of the information provided” and did not corroborate the information provided). For

these reasons, we conclude that the district court did not err in denying Shaffer’s motion to

suppress or in refusing to grant a Franks hearing.

Motion to Sever

         Federal Rule of Criminal Procedure 14(a) allows a district court to separate trials of counts

if joinder of the offenses will prejudice the defendant. Fed. R. Crim. P. 14(a).1 Pursuant to this

rule, Shaffer sought to sever his trial on Counts I through IV (the California conspiracy) from his

trial on Counts V through VII (the jailhouse conspiracy) because the facts of the latter plot would

likely suggest to the jury that Shaffer was racist and violent and, thus, might lead them to convict



1
  We note that Federal Rule of Criminal Procedure 8 also governs joinder and severance. Shaffer has not raised a
claim related to Rule 8. Moreover, it is clear that Shaffer’s alleged offenses are of a similar nature and happened close
to one another in time. That, together with the fact that the Boone County conspiracy arose as a direct result of
Shaffer’s arrest for the offenses charged in the California scheme lead us to easily conclude that joinder of the offenses
met Rule 8’s requirements. Fed. R. Crim. P. 8(a); see also United States v. Cody, 498 F.3d 582, 586 (6th Cir. 2007)
(citing United States v. Chavis, 296 F.3d 450, 456 (6th Cir. 2002)).

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No. 17-6492, United States v. Shaffer


him on unrelated counts. The district court denied Shaffer’s motion. Shaffer challenges the denial,

arguing that the joinder prejudiced him. His concerns are not unfounded. The Supreme Court has

recognized that propensity evidence may taint a jury’s opinion of a defendant and lead jurors to

assume his guilt unduly. See, e.g., Old Chief v. United States, 519 U.S. 172 (1997). However, to

succeed on a Rule 14(a) claim, it is not enough to show only “some potential jury confusion.”

United States v. Johnson, 763 F.2d 773, 777 (6th Cir. 1985) (quoting United States v. Gallo, 763

F.2d 1504, 1524 (6th Cir. 1985)). To succeed on appeal, Shaffer must demonstrate that the jury

was unable “to treat distinctively evidence” from separate claims. Id. (quoting United States v.

Gallo, 763 F.2d 1504, 1524 (6th Cir. 1985)). We will disturb the district court’s ruling only if it

was an abuse of discretion. Id.

       Shaffer does not establish a need for severance because he failed to put forward anything

more than speculation to demonstrate the jury’s inability to compartmentalize the facts related to

each of the offenses. See United States v. Cody, 498 F.3d 582, 587 (6th Cir. 2007) (noting

prejudicial joinder is unlikely when evidence is easily separated). The schemes underlying each

of Shaffer’s charges were clearly independent of one another and, to provide additional protection

against conflation of the facts, the district court delivered to the jury a limiting instruction that

matched nearly verbatim an instruction previously approved by this court in United States v.

Chavis, 296 F.3d 450, 461–62 (6th Cir. 2002). Finally, a wealth of evidence supported the jury’s

verdicts in each of the counts against Shaffer, controverting any hint of potential bias. See id. at

563 (“[I]n light of the overwhelming evidence . . . , we discern little basis for finding prejudice.”).

The district court did not abuse its discretion by denying Shaffer’s motion to sever.




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Motion to Compel Identity of Confidential Informant

       Shaffer also argues that the district court abused its discretion by declining to order the

disclosure of the government’s confidential informant. See United States v. Beals, 698 F.3d 248,

269 (6th Cir. 2012) (stating standard of review). Again, we disagree. The government has a

limited privilege to preserve the anonymity of an informant in light of the public’s interest in

protecting the flow of information. United States v. Doxey, 833 F.3d 692, 706 (6th Cir. 2016).

But, “[w]here the disclosure of an informer’s identity . . . is relevant and helpful to the defense of

an accused, or is essential to a fair determination of a cause, the privilege must give way.” Roviaro

v. United States, 353 U.S. 53, 60–61 (1957). This rule reflects a careful balance and so, to compel

the disclosure of an informant’s identity, a defendant must provide “some evidence that disclosure

. . . would assist in his defense.” Doxey, 833 F.3d at 707 (quoting United States v. Ray, 803 F.3d

244, 274 (6th Cir. 2015)).

       Shaffer protests the fairness of maintaining the informant’s anonymity and alleges that

details related to the informant’s presence in Shaffer’s home could have helped him craft his

defense, but he sheds no light on how or why that information would have been helpful. “[M]ere

conjecture or supposition about the possible relevancy of the informant’s testimony is insufficient

to warrant disclosure.” Id. (internal quotation marks and citations omitted); cf. Roviaro, 353 U.S.

at 64 (informant was sole witness to the alleged crime and possessed information that was “highly

relevant” to defendant’s case.). Furthermore, the tipster here merely “helped orchestrate the search

that led to discovery of incriminating evidence, not the crimes themselves.” Beals, 698 F.3d at

270. “We usually deny disclosure when the informer . . . was a mere tipster or introducer,” and

the Sixth Amendment right to confrontation is not implicated when information is offered “merely




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No. 17-6492, United States v. Shaffer


by way of background,” as it was here. Doxey, 833 F.3d at 707–08 (internal quotation marks and

citations omitted). Shaffer’s Sixth Amendment claim therefore also fails.

Admission of Certain Testimony

       Shaffer next challenges the district court’s admission, over Shaffer’s objection, of

testimony from Jeff McKinley, an expert in drug-trafficking investigations, as well as lay witness

testimony from Abigail Wilder. Shaffer argues that the district court’s individual rulings each

constituted error and that, even if we find they do not, together, the admissions amount to

cumulative error. We review a district court’s evidentiary rulings for an abuse of discretion and

will find erroneous rulings to be reversible error only if they “[are] not harmless; that is, only if

[they] affected the outcome of trial.” United States v. Miner, 774 F.3d 336, 348 (6th Cir. 2014).

       McKinley’s Expert Testimony

       Shaffer claims that McKinley, a law-enforcement officer with graduate-level training and

over a decade of on-the-job experience in methamphetamine-trafficking investigations, lacked the

requisite qualifications to offer expert testimony on a matter of fingerprint collection. This

argument fails. We give trial judges wide berth in making discretionary judgments related to the

admission of expert testimony. United States v. Pearce, 912 F.2d 159, 163 (6th Cir. 1990).

McKinley’s credentials speak for themselves, and the district court’s decision to admit the

testimony was not “manifestly erroneous.” Id. Moreover, even if there was error, it is implausible

that testimony on this single, largely irrelevant, issue was anything but harmless.

       Second, Shaffer argues that McKinley’s expert testimony should have been excluded

because it was unnecessary and unhelpful to the jury. But this court long ago recognized that

qualified officers have knowledge of drug-trafficking operations “beyond the understanding of the

average layman.” Id. (internal quotation marks and citations omitted). We therefore “regularly



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No. 17-6492, United States v. Shaffer


allow . . . qualified law enforcement personnel to testify on characteristics of criminal activity, as

long as cautionary instructions are given,” as they were here. United States v. Swafford, 385 F.3d

1026, 1030 (6th Cir. 2004) (internal quotation marks and citations omitted). The district court did

not err in admitting McKinley’s testimony about drug-trafficking operations.


       Third, Shaffer asserts that the district court improperly admitted testimony opining on

Shaffer’s mental state, in violation of Federal Rule of Evidence 704(b). For the most part, Shaffer

attacks testimony that falls squarely in the ambit of Rule 704(b) because it “described in general

terms the common practices” of drug traffickers. United States v. Combs, 369 F.3d 925, 940 (6th

Cir. 2004) (quoting United States v. Frost, 125 F.3d 346, 383 (6th Cir. 1997)). Shaffer does point

to one instance when McKinley stated that, based on the guns’ proximity to the drugs seized during

the home search, he did not believe the firearms found in Shaffer’s home were “for an innocent

purpose.” Here, McKinley arguably crossed the line of permissibility. See Miner, 774 F.3d at 349

(“[T]the government should not spoon-feed its theory of the case to the jury through a government

agent.” (internal quotation marks, alternations, and citations omitted)).

       However, even if we assume that all the testimony about which Shaffer complains violated

Rule 704(b) and was erroneously admitted, the error was harmless. See id. (finding error harmless

when “voluminous evidence was properly admitted at trial indicating” guilt). Absent McKinley’s

testimony, considerable evidence supported an inference of Shaffer’s intent and guilt, including

his own admissions and the wide variety of paraphernalia associated with drug trafficking found

in his home.     And, the district court mitigated any potential harm by issuing clear and

comprehensive jury instructions about expert testimony and permissible inferences regarding

Shaffer’s mental state. Thus, we cannot find that any of McKinley’s potentially impermissible

testimony “affected the outcome of the trial.” Miner, 774 F.3d at 348.


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No. 17-6492, United States v. Shaffer


       Wilder’s Testimony

       Shaffer’s complaint about Wilder’s testimony is similarly unavailing. Wilder testified that

she received threats from a member of Shaffer’s motorcycle gang, the Iron Horsemen. The district

court sustained Shaffer’s hearsay objection in part and did not permit Wilder to testify about what

was said to her. However, because the government had the right to follow-up on and clarify a line

of questioning initiated by the defense, see United States v. Segines, 17 F.3d 847, 856 (1994) ((6th

Cir. 1994), the court allowed Wilder to relay the nature of the interaction. Shaffer contends that

the testimony had no probative value and that he suffered prejudice. “The district court is afforded

broad discretion in making this determination; therefore, we review for abuse of discretion and

must maximize the probative value of the challenged evidence and minimize its potential for unfair

prejudice.” United States v. Adams, 722 F.3d 788, 812 (6th Cir. 2013) (internal quotation marks

and citations omitted). Wilder’s limited testimony was not especially shocking or offensive, and

its emergence in response to defense counsel’s inquiry renders it relevant. See Segines, 17 F.3d at

856. Further, the weight of other evidence presented at trial, including the undisputed fact of

Shaffer’s membership in the Iron Horsemen, undermines his prejudice claim. Considering the

case against Shaffer in its totality, we cannot conclude that this small piece of Wilder’s testimony

impacted Shaffer’s verdict, so we find no abuse of discretion.

       Cumulative Error

       Having found that each piece of challenged testimony did not constitute reversible error on

their own, we now must consider whether, taken together, they do. “Under cumulative-error

analysis, ‘a defendant must show that the combined effect of individually harmless errors was so

prejudicial as to render his trial fundamentally unfair.’” United States v. Warman, 578 F.3d 320,

349 (6th Cir. 2009) (quoting United States v. Trujillo, 376 F.3d 593, 614 (6th Cir. 2004)). In



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Warman, we found no error where the trial included other evidence corroborating the substance of

the challenged testimony and supporting an inference of the defendant’s guilt. Id. The same is

true here. Multiple witnesses offered testimony regarding the baggies, digital scale, cash, and

other items uncovered in the High Street search and the prevalence of these items in drug-

trafficking operations. Additionally, multiple witnesses provided testimony suggesting or directly

alleging that Shaffer was involved in drug-trafficking and a member of the Iron Horsemen. In

light of this, we cannot say that any combined effect of the alleged errors was prejudicial. See id.;

see also United States v. Collins, 799 F.3d 554, 599 (6th Cir. 2015).

Denial of Motion for Mistrial

       Shaffer also contends that the district court erred in refusing to grant a mistrial following a

cooperating witness’s testimony that Shaffer threatened the prosecutor in this case. To determine

whether a district court abused its discretion by denying a motion for a mistrial in response to

improper statements made at trial, we consider five factors: “(1) whether the remark was

unsolicited, (2) whether the government’s line of questioning was reasonable, (3) whether a

limiting instruction was immediate, clear, and forceful, (4) whether any bad faith was evidenced

by the government, and (5) whether the remark was only a small part of the evidence against the

defendant.” United States v. Caver, 470 F.3d 220, 243 (6th Cir. 2006) (citing Zuern v. Tate, 336

F.3d 478, 485 (6th Cir. 2003)).

       Considering these factors, we find the district court did not abuse its discretion. The

witness offered the challenged testimony in response to a question from defense counsel on cross-

examination. It was neither unsolicited nor unrelated to the line of inquiry, and it does not appear

to have been offered in bad faith. Following the prejudicial statement, the district court struck the

testimony from the record and admonished the jury not to consider it. The court repeated this



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No. 17-6492, United States v. Shaffer


instruction regarding stricken testimony at the end of the trial. Finally, as we have repeatedly

discussed, ample evidence substantiated Shaffer’s guilt. See Caver, 470 F.3d at 243–44.

Motion for Judgment of Acquittal

       Turning to Shaffer’s next issue on appeal, we must consider whether the district court erred

in denying Shaffer’s Rule 29 motion seeking a judgment of acquittal on the firearms charges.

Count III charged Shaffer with possessing firearms in furtherance of drug-trafficking crimes in

violation of 18 U.S.C. § 924(c)(1). Count IV charged Shaffer with being a felon in possession of

firearms in violation of 18 U.S.C. § 922(g)(1). Shaffer contends that the prosecution failed to

present adequate evidence to establish that he “possessed” the rifle and handgun found at High

Street and that the prosecution did not establish that the firearms were used “in furtherance” of

drug-trafficking crimes. We apply de novo review to a district court’s denial of a motion for

judgment of acquittal. United States v. Burchard, 580 F.3d 341, 352 (6th Cir. 2009). We will

affirm the district court’s ruling “if the evidence, viewed in the light most favorable to the

government, would allow a rational trier of fact to find the defendant guilty beyond a reasonable

doubt. This court will not substitute its judgment for that of the jury.” Id. (internal quotation

marks and citations omitted).

       Shaffer first argues that the prosecution failed to meet its burden under 18 U.S.C.

§ 924(c)(1) and § 922(g)(1) because it did not establish that he “possessed” the 9mm rifle and the

.39 caliber handgun found during the search of the High Street residence. Shaffer rests his

argument upon the fact that no witness testified to seeing him with either firearm and the fact that

the handgun belonged to his wife. He also argues that he did not live at the High Street residence

and, thus, could not have possessed the firearms found there. These arguments have no merit.




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No. 17-6492, United States v. Shaffer


       Under § 924(c)(1) and § 922(g)(1), constructive possession is sufficient to establish guilt.

United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007). And joint possession can constitute

constructive possession. United States v. Hadley, 431 F.3d 484, 507 (6th Cir. 2005). Thus, the

lack of eye witness testimony and ownership by Shaffer’s wife are irrelevant. The prosecution

had to show only that Shaffer “knowingly ha[d] the power and intention to exercise dominion and

control over the discovered firearm[s].” United States v. Grubbs, 506 F.3d 434, 440 (6th Cir. 2007).

“[P]resence alone near a gun” cannot suffice to establish constructive possession, but presence

alongside “other incriminating evidence” can “tip the scale in favor of sufficiency.” Arnold, 486

F.3d at 183 (internal quotation marks and citations omitted). This persuasive evidence might

include a defendant’s “connection with a gun, proof of motive, a gesture implying control, evasive

conduct, or a statement indicating involvement in an enterprise.” United States v. Campbell, 549

F.3d 364, 374 (6th Cir. 2008).

       At trial, the prosecution provided evidence establishing Shaffer’s connection to the rifle

and the handgun. Shaffer himself testified that his friend lent him the rifle, allegedly to shoot

racoons. The rifle was found in Shaffer’s bedroom closet, and police discovered its ammunition

in a safe where Shaffer kept various personal legal documents, including his birth certificate and

social security card. Likewise, officers testified that they discovered the handgun in Shaffer’s

bedroom, in a drawer that also held various-sized plastic baggies, often used in drug distribution.

Finally, although officers found other indicia of drug trafficking in the living room (rather than the

bedroom), the presence in the house of large quantities of methamphetamine, cash, a digital scale,

among other items, strongly suggests Shaffer’s drug-trafficking motive and involvement in a drug-

trafficking enterprise. Viewing this evidence in the light most favorable to the government, we

find that, collectively, it supports an inference that both firearms were within Shaffer’s control.



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Shaffer’s protestation that he did not live at High Street—where he received mail, kept his

motorcycle, and returned daily to meet his children after school—is unconvincing. A jury could

surmise that, even if Shaffer spent large amounts of time away from the residence, he maintained

“dominion over the premises.” Cf. Grubbs, 506 F.3d at 439-440 (finding insufficient nexus

because defendant was only a “temporary guest” who visited periodically and had no connection

to the room where the gun was found).

       The presence of indicia of drug trafficking at Shaffer’s home also undermines his claim

that the prosecution failed to prove that he possessed the firearms “in furtherance” of drug-

trafficking offenses. The “in furtherance” prong of 18 U.S.C. § 924(c) requires more than mere

“possession of a firearm on the same premises as a drug transaction.” United States v. Mackey,

265 F.3d 457, 462 (6th Cir. 2001). “[T]he firearm must be strategically located so that it is quickly

and easily available for use.” Id. However, in the absence of such apparently-strategic placement,

a gun’s use in advancing, promoting, or facilitating a drug-trafficking crime may be indicated by

other factors, including whether the firearm was loaded, the legality of the firearm’s possession,

the type of firearm, the type of drug activity charged, and the circumstances surrounding the

firearm’s discovery. Id.

       The parties do not dispute the illegality of Shaffer’s possession, nor do they contest that

the handgun was loaded when police found it.            Additionally, the “critical-defense” rifle

ammunition suggests a more sinister motive for the rifle than Shaffer’s alleged intention to use the

gun only to shoot raccoons. Finally, the $8,920.00 and 184 grams of methamphetamine found at

the High Street residence indicates a drug-trafficking scheme. See United States v. Penney, 576

F.3d 297, 315 (6th Cir. 2009) (finding guns near $1,300 in cash along with scales and narcotics

indicative of a nexus to drug-trafficking). Shaffer’s reliance on United States v. Leary, 422 F.



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No. 17-6492, United States v. Shaffer


App’x 502 (6th Cir. 2011), does not provide him any cover. In Leary, the police found guns

alongside less than four grams of crack cocaine—nearly 50 times less than the amount of drugs

found in the High Street residence. Moreover, Leary makes clear that “a ‘specific nexus’ can be

seen [when] . . . the very existence of [large quantities of drugs and money] on the premises may

be seen to warrant a gun for protection.” Leary, 422 F. App’x at 512.

       The district court did not err in denying Shaffer’s acquittal as to his firearms charges.

Sentencing

       Finally, Shaffer argues that his sentence is procedurally and substantively unreasonable.

Based on the presentence report, the district court assessed a base offense level of 34 for Shaffer

and enhanced it by eight levels, resulting in a total offense level of 42. The court also assessed

Shaffer a criminal history level V, in light of his prior convictions. The district court imposed a

within-Guidelines sentence of 420 months. We afford a presumption of reasonableness to

sentences that are within the applicable Guidelines range. United States v. Vowell, 516 F.3d 503,

510 (6th Cir. 2008). Furthermore, unless a sentence contains “significant procedural error,” we

apply the highly deferential abuse-of-discretion standard to our review. Id. A “significant

procedural error” exists where, for example, a court “fails to calculate (or improperly calculates)

the Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors,

selects a sentence based on clearly erroneous facts, or fails to adequately explain the chosen

sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). But, if a Guidelines-range calculation

error does not affect the defendant’s ultimate sentence, then the error is harmless, and we need not

remand the case for re-sentencing. See United States v. Carson, 560 F.3d 566, 590 (6th Cir. 2009).

       Shaffer attacks the district court’s base offense level determination, the application of the

§ 3553(a) factors to Shaffer’s sentence enhancements, and the district court’s calculation of his



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No. 17-6492, United States v. Shaffer


criminal history level. He also challenges the district court’s refusal, based on the court’s finding

that Shaffer lied under oath, to grant him a downward variance.

         With regard to the district court’s calculation of his base offense level, Shaffer alleges that

the district court erred because its offense-level assessment resulted from the presentence report’s

finding that the California conspiracy involved 680 grams of methamphetamine.2 Shaffer argues

that the district court should have relied upon only the 184 grams of actual methamphetamine

recovered during the August 25, 2016, search at High Street. Using that smaller amount would

have resulted in a lower base offense level. But, “[a] district court may generally rely on the

[presentence report’s] facts unless the defendant produces evidence that contradicts the

[presentence report’s] findings,” United States v. House, 872 F.3d 748, 752 (6th Cir. 2017), and it

may “approximate the quantity of the controlled substance” involved in an offense. United States

v. Davis, 981 F.2d 906, 911 (6th Cir. 1992). Shaffer did not rebut the presentence report’s findings,

except to offer the alternative, lower amount. Thus, given the district court’s broad discretion, the

court acted within its right by relying on the presentence report’s calculation of drug quantity. The

district court’s determination of a base offense level of 34 was not procedural error.

         Shaffer next complains of improper sentence enhancements, which he frames as the district

court’s failure to adequately consider the 18 U.S.C. § 3553(a) factors. Shaffer’s § 3553(a)

argument is ill-conceived and unsubstantiated, especially given the district court’s lengthy

consideration and analysis of the § 3553(a) factors. At best, his claims boil down to two objections



2
  The presentence report explained that in Shaffer’s second trip to California, which he took in July 2016, he purchased
half a pound of methamphetamine—approximately 226 grams. During Shaffer’s third trip to California, in August
2016, he purchased two pounds of methamphetamine, or 907 grams. The presentence goes on to say that, “[t]he total
amount of methamphetamine from [Shaffer’s] admissions total 24 ounces, or 680 grams of crystal methamphetamine.”
It is not clear how the presentence reached this number based on the admission that Shaffer returned two-and-a-half
pounds, or 1,133 grams, of methamphetamine. Regardless, any miscalculation is immaterial, as our caselaw urges
underestimating the quantity of drugs attributable to a defendant, United States v. Anderson, 526 F.3d 319, 326 (6th
Cir. 2017), and because both 680 grams and 1,133 grams result in a base offense level of 34. See U.S.S.G. §2D1(c)(3).

                                                         -18-
No. 17-6492, United States v. Shaffer


to the calculation of his offense level. First, Shaffer asserts that he should not have received a

four-level enhancement for his “leadership role” because he was not a leader in the California

conspiracy. Second, he argues that although the jailhouse conspiracy involved a detention center,

the two-level detention-center enhancement should not be applied to his base level of 34, which

was assessed relative to the California conspiracy.

       These arguments have no merit. The evidence presented at trial supported the inference

that Shaffer orchestrated the trips between the High Street residence and California, and testimony

from his co-conspirator’s trial confirmed his role as a leader. The application of the leadership

enhancement was reasonable. Shaffer’s challenge to the detention-center enhancement amounts

to a dispute about whether the district court properly grouped the offenses. The sentencing

guidelines clearly allow for the grouping of substantially similar offenses, and these conspiracies

are undeniably similar, thus appropriately considered together for sentencing purposes. U.S.S.G.

§ 3D1.2. Moreover, when the propriety of grouping is less certain, the guidelines allow courts to

make an assessment on a case-by-case basis. Id. There is no error in this case and, even if there

were, it would be considered harmless, because the removal of either enhancement would still

result in a guidelines range of 360 months to life. The sentence therefore remains unaffected.

       Shaffer also challenges the enhancement of his criminal history score, which the district

court applied in light of a prior robbery conviction. Shaffer argues that the conviction fell outside

of the 15-year window of relevance. Again, however, assuming Shaffer is correct, removing the

enhancement—which would place Shaffer in category IV for criminal history—would not have

altered Shaffer’s sentence. Any error here is harmless.

       Finally, Shaffer challenges the district court’s refusal to grant him a downward variance,

contending that this denial made the resulting sentence substantively unreasonable. He argues that



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No. 17-6492, United States v. Shaffer


the district court’s reasoning for denying a variance—Shaffer’s dishonesty on the stand—was an

improper justification.   Notably, Shaffer does not contest the application of a two-level

obstruction-of-justice enhancement to his offense level. Rather, he argues, somewhat confusingly,

that because the enhancement already accounted for his obstruction, he should have had the benefit

of a variance despite his obstruction.     But, Shaffer has not rebutted the presumption of

reasonableness that we apply to his within-Guidelines sentence. See Gall, 552 U.S. at 51.

Accordingly, we find that the imposition of a 420-month sentence was not an abuse of discretion.



                                        CONCLUSION

       For the reasons set out above, we AFFIRM the district court's judgment approving

Shaffer’s convictions and sentence.




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