                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 19a0010n.06

                                          No. 18-3304

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

                                                                                FILED
                                                                          Jan 09, 2019
UNITED STATES OF AMERICA,                          )                  DEBORAH S. HUNT, Clerk
                                                   )
          Plaintiff-Appellee,                      )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE NORTHERN DISTRICT OF
MAXWELL T. KLYN,                                   )       OHIO
                                                   )
          Defendant-Appellant.                     )
                                                   )
____________________________________/              )

Before: MERRITT, GIBBONS, and NALBANDIAN, Circuit Judges.

          MERRITT, Circuit Judge. Defendant Maxwell Klyn challenges the 12-month upward

variance added to his five-year mandatory-minimum sentence for attempt to possess with intent to

distribute approximately 109 grams fentanyl, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).

Klyn contends that the sentence is substantively unreasonable because the district court gave too

much weight to Klyn’s role in the opioid crisis, considered “speculative” conduct, did not give

sufficient weight to Klyn’s own drug addiction, and did not give sufficient consideration to the

fact that Klyn had no felony criminal history. Because the district court properly considered all

the 18 U.S.C. § 3553(a) factors, its decision to vary upward was not an abuse of discretion and we

affirm.
Case No. 18-3304, United States v. Klyn


                                                I.

       The facts are undisputed. Defendant entered into a written plea agreement setting forth the

offense conduct described below.        The offense conduct was largely corroborated from

communication Klyn had with an informant.

       In April 2017, defendant ordered approximately 1,000 tablets of fentanyl over the “dark

web” from a distributor named “Dopeboy210.” The tablets were pressed to appear as if they were

each 30 milligrams of oxycodone, but contained fentanyl. Even though the pills were made to

look like oxycodone, defendant knew that the substance he was buying was actually fentanyl.

Defendant had the package containing the fentanyl sent to an address in Cleveland, addressed to a

person with the initials B.B. Klyn ordered the fentanyl tablets with the intent of selling them to

raise money to post bond for another person. Postal Inspectors intercepted the parcel and

conducted a controlled delivery of the parcel to the Cleveland address. Postal Inspectors placed

the parcel in the mailbox and several hours later, B.B., the addressee, picked up the package from

the mailbox. On that same day, defendant sent a text message to B.B. asking him to call defendant.

On a recorded phone call two days later, Klyn admitted to an informant that he had ordered the

fentanyl and admitted to addressing the package to B.B. Klyn also admitted to ordering the

package from [Dopeboy210], and, additionally, to ordering “a bunch of packages from him.

I ordered, like, four of them.” Plea Agreement at ¶ 28.

       Based on Klyn’s offense conduct and criminal history, his guideline range was 46-57

months. However, Klyn’s offense of conviction carried a statutory mandatory minimum sentence

of 60 months, which exceeded the guideline range and therefore became the low end of the

sentencing range. He was sentenced to 72 months imprisonment, a 12-month upward variance

from the mandatory minimum.



                                              -2-
Case No. 18-3304, United States v. Klyn


                                                 II.

       This court reviews the substantive reasonableness of the sentence imposed for abuse of

discretion. United States v. Richards, 659 F.3d 527, 549 (6th Cir. 2011). District courts have wide

discretion in fashioning sentences. United States v. Guthrie, 557 F.3d 243, 256 (6th Cir. 2009). A

sentence may be substantively unreasonable if the district court selects the sentence arbitrarily,

bases the sentence on impermissible factors, fails to consider pertinent 18 U.S.C. § 3553(a) factors,

or gives an unreasonable amount of weight to any pertinent factor. United States v. Vowell,

516 F.3d 503, 510 (6th Cir. 2008). In evaluating substantive unreasonableness, the court looks to

the totality of the circumstances, including the extent of any variance from the guidelines range.

United States v. Christman, 607 F.3d 1110, 1118 (6th Cir. 2010) (quoting Gall v. United States,

552 U.S. 38, 51 (2007)).

       The district court properly evaluated the nature and circumstances of the offense when

imposing Klyn’s sentence. In particular, the sentencing judge expressed his concern about several

aspects of Klyn’s offense conduct. The sentencing judge noted that Klyn knowingly purchased

with the intent to sell pills that were made to appear as if they were 30 milligrams of oxycodone

when in fact they contained the more dangerous drug fentanyl, which in turn made the pills more

dangerous to unsuspecting buyers. Sentencing Tr. at 9-10, 20-21, 25. The judge also took into

consideration that Klyn purchased the pills on the so-called “dark web,” a source of illegal opioid

drugs, and that he had done so on more than one occasion. Klyn claims this finding is speculative

and cannot be considered, but he admitted to ordering “a bunch of packages” from a source known

as “Dopeboy210.” Plea Agreement at ¶ 28.

       Klyn also argues that the district court weighed his criminal history too heavily. Klyn does

not dispute the accuracy of the history on which the court relied. The court below noted that Klyn’s



                                                -3-
Case No. 18-3304, United States v. Klyn


criminal behavior started at the age of 13, and that he has received “numerous” opportunities to

change his behavior but had chosen not to do so. Sentencing Tr. at 24. The fact that Klyn has no

felony convictions in his criminal history does not detract from the fact that he has a lengthy

criminal history and he has shown little interest in veering from his path of criminal behavior.

Criminal history is only one factor considered by the district court when imposing a sentence, and

there is no indication in the record that the district court gave unreasonable weight to Klyn’s

criminal history in imposing the upward variance in his sentence. See, e.g., United States v.

Lanning, 633 F.3d 469, 474-75 (6th Cir. 2011) (affirming upward variance after considering

defendant’s criminal history with other factors).

       Klyn contends that the district court’s consideration of Klyn’s role in the opioid crisis is

improper. The district court noted that Klyn’s conduct contributed to the serious opioid crisis in

northeast Ohio, and that drug-trafficking in opioids is a particular threat there. The court also

noted that Klyn’s sale of opioids burdened law enforcement and the health-care system in the

community. Sentencing Tr. at 24. Given this, the court concluded that “it is hard to understate the

severity of the crime in question here.” Id. at 24-25. We have previously stated that such

information may be considered under the § 3553(a) factors. See, e.g., United States v. Robinson,

892 F.3d 209 (6th Cir. 2018); United States v. Hubbard, No. 17-4192, 2018 WL 3699169, at *3

(6th Cir. 2018).

       Klyn also argues that the district court did not acknowledge Klyn’s own drug addiction

problem. The district court did in fact acknowledge Klyn’s addiction, but found other factors

outweighed Klyn’s personal substance-abuse issue. Sentencing Tr. at 23. The court ordered that

he receive drug treatment once he is on supervised release. Id. at 27.




                                               -4-
Case No. 18-3304, United States v. Klyn


       It is true that the additional 12 months amounts to an increase of 20% over the mandatory

minimum sentence of 60 months. But an upward variance is proper when the district court

adequately addresses the § 3553(a) sentencing factors and provides a detailed rationale for the

variance, as the court did below. We do not find that a sentence of 72 months, incorporating the

12-month upward departure, is substantively unreasonable in this case. See, e.g., United States v.

Jones, 722 F. App’x 419, 424 (6th Cir. 2018) (upward departure of 50% found substantively

reasonable); United States v. Johnson, 640 F.3d 195, 209 (6th Cir. 2011) (affirming imposition of

a fifteen-month upward departure upon revocation of supervised release to run consecutively to

his twelve-year sentence for state convictions).

        The district court spent a significant amount of time outlining the nature of Klyn’s offense,

focusing on the dangerousness to the potential buyers of passing off fentanyl as oxycodone and

Klyn’s role in perpetuating the opioid crisis. The judge carefully considered all the relevant

§ 3553(a) factors, and concluded that an upward variance was warranted to protect the public from

Klyn’s criminal proclivities. The sentencing judge was well within his discretion to impose an

upward variance of 12 months over the mandatory minimum of 60 months.

       For the foregoing reasons, we affirm the judgment of the district court.




                                                -5-
