                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0373n.06
                                                                                           FILED
                                           No. 10-1558
                                                                                      Apr 06, 2012
                          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
ANDRE WILLIAMS,                                       EASTERN DISTRICT OF MICHIGAN

       Defendant-Appellant.

                                               /



BEFORE:        BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.

       CLAY, Circuit Judge. Defendant Andre Williams appeals from a district court order

finding that he violated five terms of his supervised release and sentencing him to two years of

imprisonment. Specifically, Williams appeals the district court’s determination that he possessed

marijuana with the intent to deliver it, in violation of Mich. Comp. Laws § 333.7401(2)(d)(iii), and

therefore committed two Grade A violations of the supervised release conditions, contrary to United

States Sentencing Guidelines (USSG) § 7B1.1(a)(1)(A)(ii), that prohibited him from committing

another crime or possessing a controlled substance. For the reasons that follow, we AFFIRM.

                                        BACKGROUND

       On September 13, 2005, Williams was indicted by grand jury of conspiracy to utter and

possess counterfeit securities of an organization, in violation of 18 U.S.C. §§ 371, 513(a). On
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November 2005, Williams pleaded guilty to the charges. On March 10, 2006, he was sentenced to

four years of imprisonment and three years of supervised release.

         Of the many standard and special conditions on Williams’ supervised release, several are

relevant to the conduct and arrest at issue here. These include conditions that Williams abstain from:

         1.    Commission of a federal, state, or local crime
         2.    Possession of a firearm
         3.    Possession of a controlled substance
         4.    Frequenting a place where controlled substances are sold
         5.    Failing to pay restitution1
         6.    Submitting an untruthful report to the probation officer
         7.    Associating with persons convicted of a felony
         8.    Failing to provide notification of an arrest within 72 hours

         Williams’ supervised release began on February 20, 2009 and was set to end in February

2012.

         A.         August 2009 Arrest

         The Redford Township police department learned from a reliable informant that a large

shipment of marijuana would be delivered during the week of August 23, 2009 to a house at 8452

Heyden Street, Detroit, Michigan. On August 27, 2009, Redford Township police officers executed

a warrant to search for suspected drug activity at 8452 Heyden Street. At the time of the search,

Williams and three other men were at the house. When the officers entered, at least one officer saw

Williams on the stairs leading to the upstairs room. The other three male occupants were in the

living room. All four were secured during the search.




         1
             Williams owed over $65,000 in restitution, but had only paid $50 of it over the course of two
years.

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        The house was approximately 800 square feet in size. Although there were two bedrooms,

which contained beds, and a living room with a couch, the house did not appear livable. It contained

no refrigerator, stove, dishes, food, or washer and dryer. However, there was a telephone and a

television with cable. In the house, officers found mail addressed to two different men.

        As the officers searched one bedroom, they found two garbage bags that contained seventeen

gallon-sized bags of marijuana. In the other bedroom, the officers found a black duffel bag with five

gallon-sized bags of marijuana and several shotgun shells. The upstairs room contained a glass table

with a digital scale, two razor blades, screw drivers, marijuana shake (i.e., residue), bubble wrap, and

empty gallon-sized bags. In the living room, the officers saw a shotgun wedged between the couch

and the wall, which was visible without moving the couch. In the basement, the officers recovered

a white plastic bag containing marijuana from the rafters.

        The officers arrested all four men. Each of the men had a prior felony conviction. When they

arrested Williams, they found $10,100 in his front pants pocket, separated into several bundles. In

Williams’ other pocket, they found keys to one of the two cars in the driveway.

        Williams did not inform his probation officer of the arrest. Williams also failed to note the

arrest in his monthly supervised release report.

        B.      Supervised Release Violation Hearing

        Because Williams was arrested during his supervised release, the government filed a petition

on February 17, 2010 alleging eight violations of his supervised release terms. The district court

held an evidentiary hearing on March 24, 2010. Williams initially pleaded guilty to violating

conditions in his supervised release that prohibited him from submitting an untruthful report to a


                                                   3
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probation officer and for failing to provide timely notification of an arrest. In addition to those

admissions, the district court found that Williams violated the terms preventing Williams from

committing another crime, possessing a controlled substance, and frequenting a place where

controlled substances are sold.2 On April 2, 2010, the court sentenced Williams to two years of

imprisonment for the five violations of his supervised release. Williams timely appealed.

                                           DISCUSSION

       We review a district court’s determination that a condition of supervised release has been

violated for abuse of discretion. United States v. Kontrol, 554 F.3d 1089, 1091 (6th Cir. 2009). We

review the district court’s factual findings for clear error and its legal conclusions de novo. Id. at

1091–92 (citing United States v. Crace, 207 F.3d 833, 835 (6th Cir. 2000), and United States v.

Carter, 463 F.3d 526, 528 (6th Cir. 2006)).

       Where the government alleges that a defendant violated a condition of his supervised release,

the government must prove that violation by a preponderance of the evidence—not beyond a

reasonable doubt—at an evidentiary hearing. 18 U.S.C. § 3583(e)(3); United States v. Lowenstein,

108 F.3d 80, 84 (6th Cir.1997); United States v. Stephenson, 928 F.2d 728, 731 (6th Cir. 1991). If

the government proves the violation, the period of incarceration is determined by the grade level of

the violation, as set by USSG § 7B1.1.




       2
         The government had initially argued that Williams possessed a firearm in violation of his
supervised release, but later conceded that it had not met its burden with respect to that violation.
The district court found that the government’s other allegations—that Williams failed to pay
restitution and knowingly associated himself with felons—were not supported by the evidence.

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       In this case, Williams was accused of violating several conditions of his supervised release.

At issue on appeal are his alleged violations of two conditions: that he not commit a federal, state,

or local crime and that he not possess a controlled substance. The government supported its

allegations of these two violations by arguing that Williams possessed marijuana with intent to

deliver it, in violation of Michigan state law. See Mich. Comp. Laws § 333.7401(2)(d)(iii). The

district court found that the government met its burden of proving the marijuana offense and,

therefore, the burden of proving the violations of the supervised release conditions.

           Under the Guidelines, a controlled substance offense that is punishable by a term of

imprisonment exceeding one year is deemed a Grade A violation of supervised release conditions.

USSG § 7B1.1(a)(1)(A)(ii). The crime of possession of marijuana with the intent to deliver it is

punishable for a term of up to four years. Mich Comp. Laws § 333.7401(2)(d)(iii). Thus, the district

court found that Williams committed a Grade A violation of his supervised release and sentenced

him to twenty-four months of imprisonment, the bottom of the USSG § 7B1.4(a) range and the

maximum permitted under 18 U.S.C. §§ 3583(e)(3), (g).

       On appeal, Williams argues the narrow issue of whether the district court abused its

discretion in finding that the government met its burden of proof on the marijuana offense. Williams

argues that he would have received a lesser sentence if the court had not found that he committed

the marijuana offense because the other violations of his supervised release terms did not carry such

a high grade level or sentencing range.3


       3
         Williams argues that his sentencing range, absent the Grade A violation, would have been
between six to eighteen months for the remaining supervised release violations, Grade B or C
violations. USSG § 7B1.4(a).

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        A.       Marijuana Offense

        The district court found that Williams possessed marijuana with the intent to deliver it, in

violation of Mich Comp. Laws § 333.7401(2)(d). That law provides, in relevant part, that:

        [A] person shall not manufacture, create, deliver, or possess with intent to
        manufacture, create, or deliver a controlled substance, a prescription form, or a
        counterfeit prescription form. . . .

        A person who violates this section as to . . . [m]arihuana or a mixture containing
        marihuana is guilty of a felony . . . .

Mich Comp. Laws §§ 333.7401(1), (2)(d). According to the Michigan Supreme Court, the elements

that the government must prove for a conviction under § 333.7401(2)(d) are: (1) that the recovered

substance is marijuana, (2) that the substance meets a specific weight amount, (3) that the defendant

was not authorized to possess the substance, and (4) that the defendant “knowingly possessed the

[marijuana] with the intent to deliver.” People v. Wolfe, 489 N.W.2d 748, 752 (Mich. 1992).

Williams disputes only the fourth element: that he knowingly possessed the marijuana with the intent

to deliver it.

        B.       Knowing Possession

        In Michigan, possession may be actual or constructive. Cannon v. Lafler, 247 F. App’x 796,

798 (6th Cir. 2007); People v. Johnson, 647 N.W.2d 480, 486 (Mich. 2002). In general,

“[c]onstructive possession exists when the totality of the circumstances indicates a sufficient nexus

between defendant and the contraband.” Johnson, 647 N.W.2d at 486 (citing Wolfe, 489 N.W.2d

at 754). The Michigan Supreme Court has fully explained its constructive-possession doctrine, with

reference to a Ninth Circuit decision:



                                                 6
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       We have stated that constructive possession may be demonstrated by direct or
       circumstantial evidence that the defendant had the power to dispose of the drug, or
       “the ability to produce the drug,” or that the defendant had the “exclusive control or
       dominion over property on which contraband narcotics are found.” Constructive
       possession may also be proven by the defendant’s participation in a “joint venture”
       to possess a controlled substance. The ultimate question is whether, viewing the
       evidence in a light most favorable to the government, the evidence establishes a
       sufficient connection between the defendant and the contraband to support the
       inference that the defendant exercised a dominion and control over the substance.

Wolfe, 489 N.W.2d at 754 (quoting United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986))

(alterations and internal quotation marks omitted); see Cannon, 247 F. App’x at 798.

       The Michigan Supreme Court has found that a defendant’s mere presence at a location where

contraband is present is insufficient to prove constructive possession, though additional evidence

connecting the defendant to the contraband may be sufficient. Wolfe, 489 N.W.2d at 753–54. In

Wolfe, the Michigan Court agreed with the District of Columbia Court of Appeals that “constructive

possession [would be] shown where the defendant was found in a sparsely furnished apartment that

contained cocaine packets and large sums of money lying about in plain view.” Id. (citing Thompson

v. United States, 567 A.2d 907, 908–09 (D.C. 1989)) (noting that, as in Thompson, “constructive

possession exists when the totality of the circumstances indicates a sufficient nexus between the

defendant and the contraband”); see also People v. Ford, No. 296142, 2011 Mich. App. LEXIS 557,

at *6 (Mich. Ct. App. Mar. 22, 2011) (noting that a defendant’s presence in a sparsely furnished

house plus evidence of drugs in plain view is sufficient to establish constructive possession); People

v. Higgins, No. 269140, 2007 Mich. App. LEXIS 1681, at *5–6 (Mich. Ct. App. June 26, 2007)

(same). Finally, possession may also be joint or exclusive. People v. Fetterley, 583 N.W.2d 199,

202 (Mich. Ct. App. 1998); Cannon, 247 F. App’x at 798.


                                                  7
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       Williams was not found with marijuana on his person, so the government was required to

show that he had constructive possession of it. The government offered testimony that the house at

8452 Heyden was essentially a drug house. Nearly every room had marijuana and drug packaging

and measuring materials. There were no food, dishes, stove, or refrigerator that would make the

house livable. The house was only 800 square feet in size, so it would have been nearly impossible

for Williams to not know that contraband was present. Furthermore, Williams was seen, by himself,

exiting the upstairs room that openly contained drug measuring and packaging material. All other

individuals were in the living room at the time.

       Williams was employed off and on and received an income of only $125 per month. He

alleged that he was unable to make restitution payments to the government and, over two years, had

only been able to pay $50 of the $65,000 that he owed. Yet, he was found in the house with bundles

of cash in his front pocket, amounting to over $10,000. There have been no other explanations for

the large amount of cash.

       This case is similar to the Thompson case, the rationale of which was adopted by the

Michigan Supreme Court in Wolfe and the Michigan Court of Appeals in Ford and Higgins. The

Thompson case held that constructive, knowing possession is properly shown where “the defendant

was found in a sparsely furnished apartment that contained cocaine packets and large sums of money

lying about in plain view.” Wolfe, 489 N.W.2d at 754 (citing Thompson, 567 A.2d at 908–09).

Here, the Redford Township received notice that a large drug transaction would take place at 8452

Heyden, a sparsely furnished house that contained marijuana, drug measuring and packaging devices

in plain view, and a large amount of cash—in Williams’ pocket. This evidence, taken in its totality,


                                                   8
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offers a sufficient nexus between Williams and the marijuana to prove his constructive possession

over it. The district court did not abuse its discretion in finding that Williams knowingly and

constructively possessed the marijuana by a preponderance of the evidence.

       C.      Intent to Deliver

       The government must also prove that Williams’ possession of the marijuana corresponded

with an “intent to deliver” it. The Michigan Supreme Court’s decision in Wolfe also provides the

rule for what constitutes an intent to deliver: “actual delivery of narcotics is not required to prove

intent to deliver. Intent to deliver has been inferred from the quantity of narcotics in a defendant’s

possession, from the way in which those narcotics are packaged, and from other circumstances

surrounding the arrest.” Wolfe, 489 N.W.2d at 755.

       It is clear that Williams had an intent to deliver the marijuana, rather than an intent to engage

in mere recreational use or some other purpose. First, there was a very large amount of marijuana.

See Wolfe, 489 N.W.2d at 755. Second, there was a plethora of drug packaging materials, including

plastic baggies, bubble wrap, black duffle bags, and black garbage bags, and measuring material,

including a digital weighing scale with marijuana residue on it, two razor blades, and a screw driver.

See id. Importantly, officers were informed of a drug transaction that would occur at the time and

place where Williams was found with the drugs. See id. These facts clearly prove that the marijuana

would be packaged and delivered.

       In sum, we find that the district court did not abuse its discretion in finding that the

government proved by a preponderance of the evidence that Williams knowingly and constructively

possessed marijuana with the intent to deliver it, in violation of Mich Comp. Laws §


                                                  9
                                           No. 10-1558

333.7401(2)(d)(iii). We also find that the district court correctly determined that a crime committed

under § 333.7401(2)(d)(iii) is a Grade A violation of supervised release conditions under USSG §

7B1.1(a)(1)(A)(ii), because it is punishable for a term of up to four years. Williams does not argue

that the two-year sentence imposed was unreasonable if he were found to have committed the

marijuana offense.

                                         CONCLUSION

       For the reasons discussed above, this Court AFFIRMS the district court order finding that

Williams violated five terms of his supervised release and sentencing Williams to two years of

imprisonment.




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