                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0025n.06

                                      Nos. 09-5200, 09-5201                               FILED
                                                                                      Jan 12, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
ANTHONY LABRON DAVIS;                                 MIDDLE DISTRICT OF TENNESSEE
RUFFINO TELLEZ-ARAUJO,

       Defendants-Appellants.
                                               /




BEFORE:        SILER, CLAY, and GIBBONS, Circuit Judges.

       CLAY, Circuit Judge.          Defendant Anthony Labron Davis appeals convictions for

conspiring to intentionally distribute, and conspiring to knowingly and intentionally possess 500

grams or more of a mixture and substance containing a detectable amount of cocaine in violation of

21 U.S.C. §§ 841(a)(1) and 846, and of knowingly and intelligently possessing with intent to

distribute, and distributing 500 grams or more of a mixture and substance containing a detectable

amount of cocaine in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2.

       Defendant Ruffino Tellez-Araujo appeals his conviction for conspiring to distribute, or

conspiring to possess with intent to distribute a mixture or substance containing a detectable amount

of cocaine in the amount of 500 grams or more in violation of 21 U.S.C. §§ 841(a)(1) and 846.

       For the reasons stated below, we AFFIRM the district court’s judgment.
                                     Nos. 09-5200, 09-5201

                                      I. BACKGROUND

       In 2003, as part of its investigation of a Nashville-based drug distribution conspiracy, Drug

Enforcement Administration (“DEA”) agents obtained a Title III court-authorized wiretap of the

phone lines of Luis Mondragon-Bibiano, known as Chapparo, and Edgar Rayo-Navarro, known as

Arturo. During the course of their investigation, DEA agents intercepted some 4,000 phone calls.

While listening to these conversations, which were entirely in Spanish, DEA agents identified the

voices of three speakers: Chapparo, Arturo, and a third speaker, referred to as El Negro. Based on

information they obtained from the wiretapped calls, DEA agents intercepted over a million dollars

in drug money, and 55 kilograms of cocaine.

       In October 2008 DEA agents arrested several members of the Tennessee drug conspiracy in

the Middle District of Tennessee, including Chapparo, Arturo, and Defendant Tellez. Although

Tellez was initially arrested for immigration violations, ten months after his arrest Chapparo and

Arturo entered into plea deals with the government, and identified Tellez as El Negro. Tellez was

subsequently indicted for drug conspiracy charges relating to the drug conspiracy.

       Defendant Davis was arrested based on three intercepted calls in which he was identified as

a speaker, and information obtained from alleged co-conspirators. According to several alleged co-

conspirators in the drug conspiracy, on a trip from Memphis, Tennessee to Nashville, Tennessee,

Davis and Arturo were introduced to each other by alleged co-conspirator Kai Tyshawn Davis,

Davis’ nephew. After this meeting, Arturo agreed to provide Davis with cocaine for distribution in

Memphis by Davis and alleged co-conspirator Allen Conner. Conner was subsequently arrested with

a kilogram of cocaine, which he stated he received from Davis.


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                                       Nos. 09-5200, 09-5201

       Based on these facts, Defendants Tellez and Davis were indicted for conspiring to possess

with intent to distribute, and conspiring to distribute five kilograms of cocaine in violation of 21

U.S.C. §§ 841(a)(1) and 846. Defendant Davis was also indicted for possessing with intent to

distribute, and distributing 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a)(1).

Defendants’ consolidated jury trial began on July 22, 2008.

       On the third day of trial, two jurors, Juror Number 12 and Juror Number 3, sent a note to the

court stating that they had contact with Davis in a hallway near the elevators outside of the jury

room. The note indicated that Davis did not speak to the jurors, but that the encounter “freaked

[them] out . . . and made [them] feel uncomfortable because [they] had to pass him in the doorway.”

Defendants immediately moved for a mistrial based on jury contact, and Tellez also moved for a

severance. The district court denied Defendants’ motions.

       The following day, Defendants moved for reconsideration of their motions for mistrial and

severance. The district court held a hearing to determine whether Davis’ contact with the jurors

warranted a new trial. At the hearing Juror Number 12 stated that the encounter “made [her] feel

uncomfortable” because Davis was “right in [her] face.” She also stated that she had discussed the

matter with the other jurors. However, she indicated that her encounter with Davis would not impact

her ability to decide the case impartially.

       Juror Number 3 stated that he thought the note’s statement that the jurors were “freaked out”

by the encounter was exaggerated. However, he believed that Juror Number 12 had convinced

herself that Davis was intentionally near the jury room. Juror Number 3 stated that he thought Davis




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                                      Nos. 09-5200, 09-5201

was simply lost when he was in the hallway near the jury room, and that as soon as Davis saw the

jury room signs he turned back.

       The district court next examined each of the other jurors in chambers. Counsel, and a court

reporter were present for the hearing. The district court asked each juror questions based on

questions submitted by counsel per the court’s instructions. Based on the hearing, the district court

dismissed Juror Number 12, and denied Defendants’ motion for a mistrial.

       The trial resumed. At the close of evidence, both Defendants moved for acquittal pursuant

to Rule 29 of the Federal Rules of Criminal Procedure. Tellez also moved for a dismissal based on

a material variance between the indictment and the evidence presented. The district court denied

both motions. The jury deliberated, and convicted Defendants.

       The district court held a joint sentencing hearing for Defendants on December 22, 2008. The

district court sentenced Davis within the statutory mandate to 120 months incarceration and an eight

year period of supervised release. In sentencing Tellez, the district court increased Tellez’ base

offense level from 26 to 36, finding upon a preponderance of the evidence that Tellez was

responsible for a greater quantity of drugs than the amount for which he was convicted. The district

court also applied firearm, and career offender enhancements to Tellez, further raising Tellez’

offense level to 38. Instead of a Guidelines range of 120 to 150 months, the district court found

Tellez’ Guidelines range was 360 months to life. The district court ultimately sentenced Tellez to

a 300 month term of imprisonment, 60 months below the bottom of the Guidelines range it found

applicable.




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                                        Nos. 09-5200, 09-5201

        At the close of the sentencing hearing the district court asked whether Defendants had

objections to the sentences. Tellez objected to the use of his acquitted conduct, the application of

a firearm enhancement to his sentence, and the court’s denial of his request for downward departure.

Tellez did not object to the court’s sentencing him as a career offender.

                                          II. DISCUSSION

        A.      Motion for Mistrial Based on Jury Contact

                1.      Standard of Review

        This Court reviews the district court’s decision not to grant a mistrial for extraneous

influence on the jury under an abuse of discretion standard. United States v. Orlando, 281 F.3d 586,

593 (6th Cir. 2002); United States v. Waldon, 206 F.3d 597, 607 (6th Cir. 2000); United States v.

Pennell, 737 F.2d 521, 533 (6th Cir. 1984).

                2.       Analysis

        Defendants contend that the district court abused its discretion in refusing to grant a mistrial

after Defendant Davis encountered Juror Number 12 and Juror Number 3 in the hallway near the jury

room.

        In Remmer v. United States, 347 U.S. 227 (1954), the Supreme Court held that “in a criminal

case, any private communication, contact, or tampering, directly or indirectly, with a juror during

a trial” requires “notice to and hearing of the defendant, [to establish] that such contact with the juror

was harmless to the defendant.” Id. at 230. The Supreme Court subsequently reaffirmed the

Remmer hearing requirement, stating that it has “long held that the remedy for allegations of juror




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                                       Nos. 09-5200, 09-5201

partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Smith v.

Phillips, 455 U.S. 209, 215 (1982).

       In Smith’s wake this Court has held:

       [f]our principles govern claims of extraneous, prejudicial influences on a jury: (1)
       when a defendant alleges that an unauthorized contact with a juror has tainted a trial,
       a hearing must be held; (2) no presumption of prejudice arises from such a contact;
       (3) the defendant bears the burden of proving actual juror bias; (4) juror testimony
       at the ‘Remmer hearing’ is not inherently suspect.

Orlando, 281 F.3d at 596; see also United States v. Zelinka, 862 F.2d 92, 95-96 (6th Cir. 1988).

       In this case, the district court adhered to these four principles. After Juror Number 12 and

Juror Number 3 informed the district court of their contact with Davis, Defendants moved for a

mistrial based on prejudicial contact with the jury. The district court initially denied the motions for

mistrial, but when Defendants renewed their motions the district court held a Remmer hearing.

       In counsel’s presence, the district court first questioned the two jurors who encountered

Davis, and signed the note to the court. In response to the district court’s questioning, Juror Number

12 stated that she believed Davis knew he was not supposed to be near the jury room, that the

encounter was “unnerving,” and made her feel “uncomfortable.” Counsel for Davis and Tellez also

had the opportunity to question Juror Number 12. In response to their questions, Juror Number 12

stated that Davis’ proximity to the jury room made her feel intimidated, and that she discussed the

encounter with the other jurors. However, Juror Number 12 stated that she would nevertheless be

able to decide the case impartially.

       The court next questioned Juror Number 3 who had also signed the note. Juror Number 3

stated that he thought the language of being “freaked out” used in the jurors’ note was overstated,


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                                      Nos. 09-5200, 09-5201

and that Juror Number 12 had convinced herself that Davis had been in the area intentionally. He

stated that he did not think much of the encounter with Davis as he thought it was “obvious that

[Davis] was lost,” and was not intentionally near the jury room. (Br. of Appellee at 24.)

       The court also held a hearing to question the remainder of the jurors who heard about the

encounter second-hand. Rather than affording counsel opportunity to question each juror, the district

court stated that it would ask these jurors questions submitted to the court by parties’ counsel.

Neither Davis’ nor Tellez’ attorney objected to this procedure. The district court proceeded to ask

the remaining jurors whether they had heard of the encounter with Davis, and whether it would affect

their impartiality. Although most of the jurors had heard about the encounter, none stated that it

would affect their deliberations.

       At the close of the hearing the district court dismissed Juror Number 12, and denied

Defendants’ motions for mistrial. The district court explained that it was denying Defendants’

motions because the lobby where Davis encountered the jurors is a public area, Davis made no verbal

contact with jurors, and Juror Number 12, who the court had dismissed, was the only juror who

believed that Davis had done anything wrong. The remainder of the jurors stated in the Remmer

hearing that their impartiality was unaffected by anything Juror Number 12 told them about the

encounter.

       As required by this Court, the district court’s Remmer hearing was “unhurried and thorough”

and “[d]efense counsel were permitted to question the jurors” to determine whether jurors were

prejudiced by the contact. See Zelinka, 862 F.2d at 96; see also Pennell, 737 F.2d at 529 (suggesting

that counsel need not themselves ask the questions, when the Remmer hearing was conducted by the


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court “[w]ith the concurrence of counsel for both parties”). Defendant bears the burden to show

actual prejudice in a Remmer hearing. Zelinka, 862 F.2d at 96. Cases in this Circuit suggest that

unless the district court finds that the jury was actually prejudiced it need not grant a mistrial based

on non-prejudicial contact with the jury. See, e.g., id. at 93-94 (finding that although a “spectator

who appeared to be associated with [defendant]” said to jurors “it would be too bad if the elevator

should crash,” as the jurors stated that they “did not believe either side was attempting to influence

their verdict, and . . . they could continue as impartial jurors,” the jury was not prejudiced); Pennell,

737 F.2d at 529 (finding no prejudice when five jurors received anonymous telephone calls that they

“had better” find the defendant guilty).

        Based on the Remmer hearing, the district court determined that Juror Number 12, the only

juror apprehensive about the encounter, should be dismissed due to possible prejudice. The

remainder of the jurors stated that they were unaffected by the encounter. A juror’s ability to gauge

their own partiality is not inherently suspect. Orlando, 281 F.3d at 596. Therefore, it was proper

for the district court to base its determinations of juror prejudice on the jurors’ statements, and

determine that the remainder of the jurors were not prejudiced. The district court did not abuse its

discretion in refusing to grant a mistrial.

        B.      Sufficiency of the Evidence Against Davis

                1.      Standard of Review

        When reviewing for the sufficiency of evidence in support of a jury verdict, this
        Court views the evidence in the light most favorable to the prosecution and gives the
        prosecution the benefit of all reasonable inferences from the testimony. The question
        the court must ask is whether any rational trier of fact could have found the essential
        elements of the crime beyond a reasonable doubt.


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                                      Nos. 09-5200, 09-5201

United States v. Caver, 470 F.3d 220, 232 (6th Cir. 2006). “[A] defendant claiming insufficiency

of the evidence bears a very heavy burden.” United States v. Jackson, 473 F.3d 660, 669 (6th Cir.

2007). The Court is “bound to make all reasonable inferences and credibility choices in support of

the jury’s verdict.” Id. at 669-70.

               2.       Analysis

       Davis was convicted of conspiring to intentionally distribute, and conspiring to knowingly

and intentionally possess 500 grams or more of a mixture and substance containing a detectable

amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and of knowingly and intelligently

possessing with intent to distribute, and distributing 500 grams or more of a mixture and substance

containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. §2.

       The elements of a conspiracy are: “(1) an object to be accomplished. (2) A plan or scheme

embodying the means to accomplish that object. (3) An agreement or understanding between two

or more [individuals] whereby they become definitely committed to cooperate for the

accomplishment of the object by the means embodied in the agreement, or by any effectual means.”

Caver, 470 F.3d at 232 (internal quotations and citation omitted). In the context of a conspiracy to

violate the federal drug laws, “the government must prove, beyond a reasonable doubt, (1) an

agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation

in the conspiracy.” Id. (internal quotations and citations omitted). This Court explained in Caver

that a “vertical pattern of [drug] distribution” can

       form a ‘chain’ conspiracy where an agreement to supply drugs to a given area can be
       inferred from the interdependence of the enterprise. That said, the agreement to enter
       into a transaction . . . is not equivalent to the agreement needed to support a
       conviction for conspiracy . . . [which] must be based on evidence from which a

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                                      Nos. 09-5200, 09-5201

         rational trier of fact could find that the defendant had knowledge of the conspiracy
         itself, and purposefully joined the conspiracy.

Id. at 233. “Proof of a formal agreement is not required to establish a conspiracy; a tacit or material

understanding among the parties is sufficient.” United States v. Driver, 535 F.3d 424, 429 (6th Cir.

2008).

         Evidence demonstrating Davis’ involvement in the drug conspiracy was presented at trial in

two forms: through testimony of co-conspirators who had entered into plea agreements with the

government, and through phone calls that the government had intercepted through its wiretap on

Chapparo’s and Arturo’s phone lines.

         Davis initially became involved with Chapparo and Arturo when Arturo asked Tyshawn,

Davis’ nephew, if he knew anyone outside of Nashville who might be interested in buying and

distributing cocaine. Tyshawn responded that his uncle in Memphis, Davis, might be interested.

Chapparo testified that he first met Davis on July 31, 2006 at a recreation center by a lake with

Arturo and Tyshawn. Tyshawn, Allen Conner, and Davis arrived at the meeting in a blue SUV that

authorities later determined was registered to Davis and his wife. At this meeting Arturo agreed to

give Davis one kilogram of cocaine on credit, which Arturo directed Chapparo to provide. Later that

day authorities intercepted a call in which Davis asked Chapparo when Davis would receive the

kilogram of cocaine, and Chapparo promised to have it delivered later that day.

         Conner testified that Davis received the kilogram of cocaine at a car wash in Nashville.

Arturo testified that Tellez delivered the cocaine to Davis. Davis and Conner agreed that they would

resell the kilogram of cocaine in Memphis, and split the profits. Conner was arrested in Memphis

with the kilogram of cocaine. Davis met with Arturo and Chapparo a number of times to discuss

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                                       Nos. 09-5200, 09-5201

payment after Davis failed to pay for the cocaine. Tyshawn also identified Davis’ voice on several

calls intercepted on Chapparo’s phone.

          Davis argues that the government’s evidence against him is insufficient because “[e]very

witness for the prosecution . . . worked for the government in some capacity . . . as an employee, in

the case of the federal agents or, in the case of the several alleged co-conspirators, in order to obtain

favorable treatment in their own criminal matter.” (Br. of Appellant Davis at 19.) Davis further

asserts that the government’s only other witnesses against Davis never “testified they ever saw him

with drugs; rather each testified that they heard about it or inferred it from other conversations.” (Id.

at 20.)

          To be clear, Davis is not appealing the district court’s decision to admit any of the

government’s evidence against him. Davis is only arguing that based on witness’ credibility and the

circumstantial nature of some of the evidence, the evidence presented is insufficient to convict him.

This Court has held, however, that in reviewing a conviction for sufficiency of the evidence,

conspiracy can be inferred through circumstantial evidence. Caver, 470 F.3d at 233.

          Viewing the evidence in “the light most favorable to the prosecution,” we cannot conclude

that no “rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. at 232. The evidence regarding Davis’ drug convictions is sufficient, as

multiple witnesses testified that Davis received cocaine from Chapparo and Arturo. The evidence

regarding Davis’ conspiracy conviction is not quite as strong, as there is no direct testimony that

Davis entered into the drug transactions intending to join the drug conspiracy. However, there are

sufficient circumstances that a reasonable trier of fact could find beyond a reasonable doubt that


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                                      Nos. 09-5200, 09-5201

Davis was guilty of conspiracy. These include, Davis’ numerous contacts with Chapparo and Arturo,

his plan with Conner to resell the cocaine, and Tyshawn’s statement that Davis became involved

with Chapparo and Arturo after Chapparo asked Tyshawn if he knew anyone interested in cocaine

outside of Nashville.

       There is sufficient evidence to sustain both of Davis’ convictions.

       C.      Tellez’ Severance Motion

               1.       Standard of Review

       This Court reviews “the district court’s denial of severance for a clear abuse of discretion.”

Id. at 237. However, where a claim for severance was denied but not renewed, the Court reviews

the issue for plain error. United States v. Allen, 160 F.3d 1096, 1106 (6th Cir. 1998).

               2.       Analysis

       Federal Rule of Criminal Procedure 8(b) provides that “[t]he indictment or information may

charge 2 or more defendants if they are alleged to have participated in the same act or transaction,

or in the same series of acts or transactions, constituting an offense or offenses. The defendants may

be charged in one or more counts together or separately.” FED . R. CRIM . P. 8(b). However, “if the

joinder of offenses or defendants in an indictment . . . appears to prejudice a defendant or the

government, the court may . . . sever the defendants’ trials.” FED . R. CRIM . P. 14(a).

       This Court has held that “a strong policy presumption exists in favor of joint trials when

charges will be proved by the same evidence and result from the same acts,” as in a conspiracy trial.

Caver, 470 F.3d at 238. “Society has an interest in speedy and efficient trials . . . and . . . only if

there is a serious risk that a joint trial would compromise a specific trial right of one of the


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                                      Nos. 09-5200, 09-5201

defendants, or prevent the jury from making a reliable determination about guilt or innocence,”

should the trials be severed. Id. Therefore, “a defendant seeking severance at trial bears a strong

burden and must demonstrate substantial, undue, or compelling prejudice.” Id.

       Tellez moved for severance twice after his co-defendant encountered Juror Number 3 and

Juror Number 12, arguing that Davis’ encounter with the jurors prejudiced Tellez. Tellez argues that

the district court abused its discretion in failing to rule on his renewed motion for severance which

he raised prior to the Remmer hearing. However, Tellez failed to renew his motion for severance

either at the close of the Remmer hearing, or at the close of evidence generally. This Court has

“unequivocally stated that failure to renew a motion to sever at the close of evidence results in

waiver of the motion.” Allen, 160 F.3d at 1106. Thus, Tellez’ severance motion is considered

waived.

       D.      Tellez’ Motion for Acquittal Based on Variance

               1.      Standard of Review

       “The court of appeals reviews the question of whether a variance has occurred de novo.”

Caver, 470 F.3d at 235.

               2.      Analysis

       “Within the context of a conspiracy, a variance constitutes reversible error only if a defendant

demonstrates that he was prejudiced by the variance and that the indictment alleged one conspiracy,

but the evidence can be construed only as supporting a finding of multiple conspiracies.” Id. at 235-

36. Furthermore, “whether single or multiple conspiracies have been shown is usually a question




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                                       Nos. 09-5200, 09-5201

of fact to be resolved by the jury and is to be considered on appeal in the light most favorable to the

government.” United States v. Segines, 17 F.3d 847, 856 (6th Cir. 1994).

        “To obtain reversal of a conviction because of a variance between the indictment and the

evidence produced at trial, a defendant must satisfy a two-prong test: (1) the variance must be

demonstrated and (2) the variance must affect some substantial right of the defendant.” United

States v. Budd, 496 F.3d 517, 521-22 (6th Cir. 2007). Prejudice to a defendant’s substantial rights

due to a variance generally comes in two main forms. One form of prejudice is if the “defendant is

not enabled to present his defense and . . . [is] taken by surprise by the evidence offered at trial” due

to the degree of variance between the indictment and the evidence presented at trial. Id. at 527. A

second form of prejudice, which this Court has dubbed “the primary risk” in variance cases, is “the

transference of guilt from defendants involved in one conspiracy to defendants in another

conspiracy.” Caver, 470 F.3d at 237. This second risk “increases in direct proportion to the number

of defendants, and the number of conspiracies demonstrated at trial.” Id.

        In this case, Tellez was convicted of conspiring to distribute, or conspiring to possess with

intent to distribute cocaine in connection with the alleged drug conspiracy. At trial a significant

amount of evidence was presented connecting Tellez to the conspiracy. Chapparo testified at trial

that he delivered cocaine to Tellez more than twenty times, that he picked up drug proceeds from

Tellez more than twenty times, and that Tellez helped him count drug proceeds more than twenty

times. Chapparo also identified Tellez’ voice on several calls intercepted on Chapparo’s phone line

in which delivery of cocaine and payments for cocaine were discussed. Arturo likewise testified that

Tellez was involved in the conspiracy, and that Arturo would give cocaine to Chapparo to deliver


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                                      Nos. 09-5200, 09-5201

to Tellez. Arturo also identified Tellez’ voice in several intercepted calls discussing distribution of

several dozen kilograms of cocaine, and payment collection.

       Tellez’ brother and cousin also testified against Tellez pursuant to plea agreements stemming

from a federal cocaine conspiracy charge in Texas. Tellez’ brother and cousin testified that they

brought and sent Tellez cocaine from Texas to Nashville.

       The evidence does tend to show that Tellez was involved in two conspiracies, one based in

Nashville, and one based in Texas. However, to the extent that there was a variance between the

indictment and the evidence at trial in the number of conspiracies demonstrated, this variance did

not affect Tellez’ substantial rights. The nature of the two conspiracies was sufficiently similar, as

was the evidence of Tellez’ roles, such that Tellez was not in danger of being surprised by the

evidence presented against him at trial. Nor was Tellez more likely to be convicted for involvement

in the Tennessee conspiracy based on evidence presented regarding the Texas conspiracy. With or

without Tellez’ brother’s and cousin’s testimony, ample evidence was presented at trial

demonstrating that Tellez was involved in a conspiracy to distribute the 500 grams or more of

cocaine for which he was convicted.

       E.      Use of Acquitted Conduct in Calculating Tellez’ Offense Level

               1.      Standard of Review

       “This court reviews a constitutional challenge to a defendant's sentence de novo wherever

the defendant preserves the claim for appellate review. Where a defendant fails to make an . . .

objection, this court must review the claim for plain error.” United States v. Copeland, 321 F.3d

582, 601 (6th Cir. 2003).


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                                      Nos. 09-5200, 09-5201

                2.      Analysis

        Tellez contends that his Sixth Amendment rights were violated by the sentencing court’s

finding by a preponderance of the evidence that he was responsible for conspiring to distribute at

least 50 kilograms of cocaine, although the jury only convicted him for conspiring to distribute 500

grams of cocaine. Tellez does not contend that the district court failed to find that he was

responsible for 50 kilograms of cocaine by a preponderance of the evidence. He limits his challenge

to the constitutional issue.

        This Court held in United States v. White, 551 F.3d 381 (6th Cir. 2008) (en banc), that “the

Sixth Amendment [does not] prevent[] a district court from relying on acquitted conduct in applying

an advisory [sentencing] guidelines system. In the post-Booker world, the relevant statutory ceiling

is no longer the Guidelines range but the maximum penalty authorized by the United States Code.”

Id. at 384 (internal quotations omitted). Therefore, “a post-Booker sentencing court may consider

even acquitted conduct if it finds facts supporting that conduct by a preponderance of the evidence.”

United States v. Mendez, 498 F.3d 423, 427 (6th Cir. 2007) (internal quotations and citations

omitted).

        Tellez’ Sixth Amendment argument was foreclosed by this Court’s en banc decision in White.

        F.      Firearm Enhancement to Tellez’ Sentence

                1.      Standard of Review

        “A district court’s finding that a defendant possessed a firearm during a drug crime is a

factual finding subject to the clearly erroneous standard of review.” United States v. Darwich, 337

F.3d 645, 664 (6th Cir. 2003).


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                                      Nos. 09-5200, 09-5201

       This Court reviews the district court’s finding of sentencing facts for clear error. The district

court’s application of the enhancement framework “will only be clearly erroneous when, although

there may be some evidence to support the finding, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been committed.” Id. at 663. This Court

“will uphold the district court’s decision as long as it has interpreted the evidence in a manner

consistent with the record. Where there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.” Id. at 664.

               2.      Analysis

       Under the Sentencing Guidelines, firearm enhancement analysis has two steps,

       First, to meet is initial burden, the government must show by a preponderance of the
       evidence that the defendant possessed the firearm while committing a drug
       trafficking offense.

       Second, if the government is successful in meeting its initial burden, the burden shifts
       to the defendant to demonstrate that it was clearly improbable that the weapon was
       connected to the offense.

United States v. Davidson, 409 F.3d 304, 312 (6th Cir. 2005).

       Tellez contends that there is insufficient evidence that he possessed a gun in connection with

the commission of the conspiracy to support the firearm enhancement. Several witnesses testified

that they saw Tellez with a “Dillinger” when he was delivering cocaine, and one witness testified

that he sold Tellez a Smith and Wesson. Tellez contends that these witnesses are not credible, and

that the government failed to conclusively connect Tellez with a firearm. Although the strength of

the evidence connecting Tellez with a gun is questionable, concluding that Tellez possessed a

firearm is a “permissible view[] of the evidence.” Darwich, 337 F.3d at 664. Moreover, Tellez


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                                      Nos. 09-5200, 09-5201

provides no evidence that it was “clearly improbable” that any gun in his possession was not used

in connection with the conspiracy. Davidson, 409 F.3d at 312. The district court thus did not plainly

err in applying the firearm enhancement to Tellez.

       G.      Application of Career Offender Status to Tellez and Refusal to Depart
               Downward

               1.      Standard of Review

       “This Court reviews de novo a lower court’s determination that a defendant is a career

offender for sentencing purposes.” United States v. Wood, 209 F.3d 847, 849 (6th Cir. 2000). In so

doing, “[t]his Court reviews a district court’s legal conclusions regarding the Sentencing Guidelines

de novo.” United States v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006). “Moreover, [this Court]

review[s] a district court’s factual findings in applying the Sentencing Guidelines for clear error.”

Id.

       This Court reviews a district court’s “ultimate decision” regarding a downward departure “for

an abuse of discretion.” United States v. Smith, 278 F.3d 605, 609 (6th Cir. 2002). However, “[t]he

Court reviews de novo the issue of whether the district court was aware of its authority to depart

downward.” Id.

               2.      Analysis

       A defendant qualifies as a career offender under the Sentencing Guidelines if “the defendant

has at least two prior felony convictions of either a crime of violence or a controlled substance.”

SENTENCING GUIDELINES MANUAL § 4B1.1. “In order to determine whether a defendant’s

prior conviction is a controlled substance offense for purposes of § 4B1.1, the Sixth Circuit has

adopted a categorical approach. Generally speaking, only the fact of the prior conviction and the

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statutory definition of the predicate offense are used to determine whether a prior conviction is a

controlled substance offense.” Galloway, 439 F.3d at 322 (internal citations omitted). Tellez’ three

prior felony convictions for controlled substance crimes, place him within the definition of a career

offender.

       This Court “generally presumes that district judges are aware that they have [the]

discretionary authority [to depart downward from a career offender status].” Smith, 278 F.3d at 610.

However, on review this Court can find “that the usual presumption that sentencing courts are aware

of their authority to depart does not apply” when a defendant’s “case [falls] outside of the heartland

of cases in which the career offender provision is usually applied.” Id.

       This Court’s downward departure case law is inapposite. Although the district court did find

that Tellez was a career offender, this finding did not affect Tellez’ sentence. Tellez was sentenced

at an offense level of 37. This offense level is one point more than his base offense level of 36, but

one point less than his base level of 36 plus the two-point firearm enhancement. This produced a

discretionary Guidelines range of 360 months to life. The district court ultimately sentenced Tellez

to 300 months. Although the district court did not explicitly state that it was not considering Tellez’

career offender status, the point calculation used, and Tellez’ sentence of 60 months below the

bottom of the advisory Guidelines range, demonstrate that it was not a consideration in the district

court’s sentencing.

       H.      Procedural and Substantive Reasonableness of Tellez’ Sentence

               1.      Standard of Review




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                                      Nos. 09-5200, 09-5201

       This Court reviews preserved sentencing challenges “under a deferential abuse-of-discretion

standard for reasonableness.” United States v. Herrera-Zuniga, 571 F.3d 568, 581 (6th Cir. 2009).

However, “[w]here a defendant fails to properly preserve an issue for appeal, that claim is subject

to review for plain error only.” Id. at 580.

               2.      Analysis

       Tellez objects to the reasonableness of his 300 month sentence, which is 60 months below

the suggested Guidelines range of 360 months to life. This Court “review[s] all sentences – whether

inside, just outside, or significantly outside the Guidelines range – under a deferential abuse-of-

discretion standard.” United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). This reasonableness

review “has two components: procedural and substantive.” Id. “Consequently, [the Court’s]

reasonableness review requires inquiry into both the length of the sentence and the factors evaluated

and the procedures employed by the district court in reaching its sentencing determination.”

Herrera-Zuniga, 571 F.3d at 581 (internal quotations omitted).

       Before evaluating the procedural reasonableness of Tellez’ sentence, the Court must

“determine what standard of review applies” by “determin[ing] whether [defendant] preserved these

claims for appeal.” Id. at 578. As the Court held in United States v. Bostic, 371 F.3d 865, 872 (6th

Cir. 2004), “district courts are required, after announcing sentence, to ask the parties whether they

have any objections to the sentence that have not previously been raised.” Herrera-Zuniga, 571 F.3d

at 578. If the defendant fails to raise an error “[w]here the sentencing judge complies with this

procedure, the defendant generally forfeits the right to challenge on appeal any procedural errors to




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                                      Nos. 09-5200, 09-5201

which he did not object at the time of sentencing.” Id. Such errors will be reviewed for plain error

only. All challenges raised at sentencing will be reviewed for reasonableness. Id. at 581.

        After sentencing Tellez, the district court asked whether Defendants objected to the sentence

as required by Bostic. Tellez’ counsel replied that Tellez objected to the firearm and drug quantity

enhancements, and to the court’s refusal to depart downward and sentence Tellez to a term of

imprisonment closer to the statutory minimum. On appeal Tellez contends that his sentence was

procedurally unreasonable because: (1) the sentence is outside the appropriate Guidelines range as

the district court misapplied the Guidelines by enhancing Tellez’ base offense level using acquitted

conduct and a firearm enhancement; and (2) the district court did not adequately explain the chosen

sentence.

        Procedural reasonableness review “begins with a robust review of the factors evaluated and

the procedures employed by the district court in reaching its sentencing determination.” Bolds, 511

F.3d at 578. Specifically,

        [i]n reviewing sentences for procedural reasonableness [the Court] must ensure that
        the district court: (1) properly calculated the applicable advisory Guidelines range;
        (2) considered the other § 3553(a) factors as well as the parties’ arguments for a
        sentence outside the Guidelines range; and (3) adequately articulated its reasoning
        for imposing the particular sentence chosen, including any rejection of the parties’
        arguments for an outside-Guidelines sentence and any decision to deviate from the
        advisory Guidelines range.

Id. at 581.

        Tellez first challenges that the district court misapplied the Guidelines by using acquitted

conduct and a firearm enhancement to increase his base offense level and advisory sentence range.

This challenge was raised below and should be reviewed for abuse of discretion. Herrera-Zuniga,


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                                       Nos. 09-5200, 09-5201

571 F.3d at 581. As previously discussed, the district court did not abuse its discretion in using

either acquitted conduct or the firearm enhancement in calculating Tellez’ offense level. These facts

were proved by a preponderance, and Tellez’ resulting sentence was below the statutory maximum.

        Tellez’ second challenge, that the district court did not adequately explain the chosen

sentence – whether it was based on the offense level plus firearm enhancement, or career offender

status – was not preserved for appeal. Tellez did not raise this challenge at the sentencing hearing.

It should thus be reviewed for plain error only. To establish plain error, a defendant must show: “(1)

error[,] (2) that was obvious or clear, (3) that affected defendant’s substantial rights[,] and (4) that

affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v.

Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc). Whether or not the district court erred in not

clarifying whether Tellez’ sentence was calculated based on his offense level plus a firearm

enhancement, or based on Tellez’ career offender status, Tellez fails to demonstrate that there was

plain error. Any deficiency in the district court’s explanation did not affect Tellez’ substantial rights

as either calculation produces an advisory Guidelines range of 360 months to life, from which the

district court departed downward by 60 months.

        Tellez also challenges the substantive reasonableness of his sentence. A defendant “is not

required to object to the substantive reasonableness of his sentence to preserve that issue for appeal.”

Herrera-Zuniga, 571 F.3d at 578. Substantive reasonableness review focuses on the appropriateness

of “the length of the sentence.” Id. at 581. This inquiry “take[s] into account the totality of the

circumstances, including the extent of any variance from the Guidelines range.” Bolds, 511 F.3d at




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                                     Nos. 09-5200, 09-5201

581. In this inquiry the Court “appl[ies] a rebuttable presumption of substantive reasonableness” to

“sentences within the Guidelines.” Id.

       The district court sentenced Tellez to 300 months, which is 60 months below the bottom of

the advisory Guidelines range. This sentence, like sentences within the Guidelines range, is subject

to a “rebuttable presumption of substantive reasonableness.” Id. Tellez’ arguments regarding the

substantive unreasonableness of his sentence focus on the court’s use of the firearm enhancement

and acquitted conduct in calculating his base offense level. As discussed previously, the district

court did not err in using these factors to calculate Tellez’ sentence. Thus this argument is

insufficient to rebut the presumption of substantive reasonableness for Tellez’ below-Guidelines

sentence.

                                      III. CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s decision.




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