                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0365n.06

                                       No(s) 11-5388/5777

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                           APR 4, 2012
UNITED STATES OF AMERICA,                               )              LEONARD GREEN, Clerk
                                                        )
       Plaintiff-Appellee,                              )
                                                        )        ON APPEAL FROM THE
v.                                                      )        UNITED STATES DISTRICT
                                                        )        COURT FOR THE EASTERN
MICHAEL CURRIER, aka Draulic, aka Big Mike;             )        DISTRICT OF TENNESSEE
RALPH T. O’NEAL, III, aka Ralph O’Neal, III             )
                                                        )                           OPINION
       Defendants-Appellants.                           )




BEFORE:        COLE and McKEAGUE, Circuit Judges; ZATKOFF, District Judge.*

       COLE, Circuit Judge. Defendants-Appellants Michael Currier and Ralph O’Neal, III appeal

the convictions and sentences arising from their participation in a large-scale cocaine trafficking

conspiracy. As neither Defendant raises a claim for which we can grant relief, we AFFIRM.

                                       I. BACKGROUND

       In 1998, law enforcement officers in Roane County, Tennessee began investigating O’Neal

based on a suspicion that he was engaging in drug trafficking. The officers made a series of

controlled purchases of crack cocaine as well as conducted a number of interviews of local drug

dealers and customers, who all named O’Neal as the primary source of crack cocaine supply in

Roane County. In one such interview, in 2003, federal and local law enforcement officers spoke

       *
        The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District
of Michigan, sitting by designation.
Nos. 11-5388/11-5777
United States of America v. Michael Currier/Ralph T. O’Neal, III

with Currier at the Fox Lake apartment he shared with O’Neal, and Currier admitted to selling crack

cocaine he obtained from O’Neal. In 2008, Currier met with federal law enforcement officers and

again admitted to receiving a supply of crack cocaine from O’Neal for resale.

       In June 2008, following years of federal and local investigation, O’Neal was arrested and

indicted by a federal grand jury with conspiring to distribute, and possess with intent to distribute,

at least five grams of cocaine hydrochloride and fifty grams of cocaine base. The grand jury later

returned a superseding indictment charging O’Neal with eleven counts: one count of conspiring to

distribute, and possess with intent to distribute, at least five kilograms of cocaine hydrochloride and

fifty grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846; two counts

of aiding and abetting the distribution of cocaine hydrochloride, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C); four counts of distributing cocaine hydrochloride within 1,000 feet of a

public elementary school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 860; and one count

of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The superseding

indictment also charged Currier, Brandon Cooper, Demond Reed, and Randy Spears as co-

conspirators in Count One—which charged a conspiracy to distribute, and possess with intent to

distribute, five kilograms or more of cocaine hydrochloride and fifty or more grams of cocaine.

       Currier and O’Neal were tried separately in the Eastern District of Tennessee and each was

convicted of their charged offenses. The district court sentenced Currier, at the bottom of the

applicable Guidelines range, to 292 months’ imprisonment. The district court sentenced O’Neal to

life imprisonment, based on the mandatory life sentence provision in 21 U.S.C. § 841(b)(1)(A) for

defendants who have committed two or more prior felony drug offenses. Currier timely appealed,

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Nos. 11-5388/11-5777
United States of America v. Michael Currier/Ralph T. O’Neal, III

raising three objections to his sentence: the district court’s decision to hold him responsible for

fifteen to fifty grams of cocaine, and the court’s application of § 2D1.1(b)(1) and § 3B1.1 of the

United States Sentencing Guidelines. Currier also appeals his conviction, alleging that the district

court erred in admitting into evidence a July 2010 recorded telephone conversation between himself

and O’Neal. Likewise, O’Neal timely appealed his conviction, raising a sufficiency-of-the-evidence

claim, alleging the district court abused its discretion in dismissing O’Neal’s pro se motions, and

contesting the district court’s failure to identify alternate jurors prior to jury deliberation. O’Neal

also challenges his sentence and argues that § 841(b)(1)(A)’s mandatory life sentence violates the

Fifth, Eighth, and Fourteenth Amendments.

                                     II. CURRIER’S CLAIMS

A. Sentencing Based on Fifteen to Fifty Grams of Cocaine

       The district court found Currier responsible for fifteen to fifty kilograms of cocaine, and

sentenced him according to the Guidelines range for that amount. Currier challenges this calculation

and alleges that the district court erred in attributing this quantity of cocaine to his offense because

it was not supported by the trial record. In calculating drug quantity for sentencing purposes, we

have noted that “an estimate will suffice so long as it errs on the side of caution and likely

underestimates the quantity of drugs actually attributable to the defendant.” United States v.

Anderson, 526 F.3d 319, 326 (6th Cir. 2008).

       “In reviewing a district court’s application of the Sentencing Guidelines, this Court will

accept the findings of fact of the district court unless they are clearly erroneous and [will] give due

deference to the district court’s application of the Guidelines to the facts.” United States v. Moon,

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Nos. 11-5388/11-5777
United States of America v. Michael Currier/Ralph T. O’Neal, III

513 F.3d 527, 539-40 (6th Cir. 2008) (alteration in original) (internal quotation marks and citation

omitted). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has

been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

       The district court based its factual determination on the trial testimony of witnesses Mandi

Elliot, Jackie Miller, Brett Cummings, and Stacey Harvey as well as statements O’Neal made to law

enforcement officers. Elliot testified that Currier traveled to both Tennessee and Texas two or three

times a month to purchase cocaine, and that she had observed freezer bags of cocaine, stacks of

money, and a safe in Currier’s bedroom. She further testified that in 2002 and 2003 she saw at least

four kilograms of cocaine in Currier’s possession. Miller testified that, in December 2007, Currier

recruited her to travel to Tennessee to pick up a kilogram of cocaine. She also testified that Currier

told her that in 2007, he purchased a kilogram of cocaine in Texas. Cummings testified that, in

2007, he began selling cocaine he purchased from Currier, and that he had observed a kilogram of

cocaine in Currier’s apartment. Harvey testified that for ten years she sold drugs that Currier

supplied, and that she had observed Currier use a “kilo press” to compress a brick of cocaine as well

as freezer bags of cocaine in Currier’s apartment at least two or three times per week.

       The court also noted that O’Neal informed law enforcement officers that Currier purchased

four ounces of cocaine per day for the length of the conspiracy, totaling roughly eighty-two to eighty-

four kilograms. Currier alleges that the district court’s consideration of O’Neal’s out-of-court

statement was an improper use of hearsay and a violation of the Confrontation Clause. The

sentencing court is not, however, bound by the Federal Rules of Evidence, United States v.

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United States of America v. Michael Currier/Ralph T. O’Neal, III

Moncivais, 492 F.3d 652, 658 (6th Cir. 2007), nor does the Confrontation Clause apply to sentencing

proceedings, id. at 665. Rather, the Guidelines require that evidence introduced at sentencing meet

a “minimum indicia-of-reliability.” Id. at 658-59; see United States Sentencing Manuel § 6A1.3(a).

Currier has not identified any unreliability in O’Neal’s statement and, in fact, Currier’s own

statements to law enforcement officers in 2003 and 2008 corroborate the allegation that Currier

regularly purchased cocaine from O’Neal. Currier objected to the admission of O’Neal’s statement

on the basis that it was made by a co-conspirator. We have expressly rejected the contention that

“co-conspirator hearsay [is] inherently unreliable, . . . render[ing it] presumptively inadmissible at

sentencing.” Moncivais, 492 F.3d at 660. Therefore, after reviewing the evidence properly before

the district court at sentencing, it cannot be said that the district court was clearly erroneous in

attributing fifteen to fifty kilograms of cocaine to Currier’s offense and sentencing him accordingly.

B. District Court’s Application of U.S.S.G. § 2D1.1(b)(1)

       Currier contends that the district court erred in its application of a two-level sentencing

enhancement for the possession of “a dangerous weapon (including a firearm)” in connection with

a drug offense. U.S.S.G. § 2D1.1(b)(1). The “district court’s determination that the defendant

possessed a firearm during a drug offense is a factual finding that this court reviews under the clearly

erroneous standard.” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir. 2008) (quoting United

States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003)). The government bears the initial burden to

demonstrate, by a preponderance of the evidence, that a defendant actually or constructively

possessed a firearm. Id. Once the government meets this burden, it shifts to the defendant to



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United States of America v. Michael Currier/Ralph T. O’Neal, III

establish that it was “clearly improbable that the weapon was connected with the crime.” Id.

(quoting United States v. Hough, 276 F.3d 884, 894 (6th Cir. 2002)).

        In applying the § 2D1.1(b)(1) enhancement, the district court considered testimony from

Elliot, Miller, Harvey, and Cummings regarding Currier’s possession of a firearm. Elliot testified

at trial that Currier kept several firearms in the bedroom where he stored cocaine. Miller testified

that Currier had a pistol under his car seat during their trip to Tennessee to buy a kilogram of

cocaine. Harvey testified that he observed various firearms in Currier’s Fox Lake apartment.

Cummings testified that he saw a firearm on Currier’s night stand a couple of times. In light of this

trial testimony and Currier’s lack of evidence to disprove possession of a firearm during the drug

offense, we are not “left with the definite and firm conviction,” U.S. Gypsum Co., 333 U.S. at 395,

that the district court committed a mistake. Therefore, we do not find the district court’s use of the

§ 2D1.1(b)(1) sentencing enhancement to be clearly erroneous.

C. District Court’s Application of U.S.S.G. § 3B1.1

        The district court applied a four-level enhancement to Currier’s sentence under U.S.S.G.

§ 3B1.1 based on his role as an “organizer or leader of a criminal activity that involved five or more

participants.” U.S.S.G. § 3B1.1(a). “A district court’s legal conclusions are generally reviewed de

novo, and its factual findings will not be set aside unless clearly erroneous.” United States v.

Vasquez, 560 F.3d 461, 473 (6th Cir. 2009). However, “[t]he standard that governs [this Court’s]

review of a sentencing enhancement for a leadership role under U.S.S.G. § 3B1.1 is not altogether

clear,” id., because Burford v. United States, 532 U.S. 59, 66 (2001), urges appellate courts to review

a district court’s application of the Guidelines “deferentially rather than de novo ‘in light of the fact-

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United States of America v. Michael Currier/Ralph T. O’Neal, III

bound nature of the legal decision.’” Vazquez, 560 F.3d at 473 (quoting Burford, 532 U.S. at 66.))

Nevertheless, we need not resolve which standard applies because we conclude that the leadership

adjustment was appropriate under either standard of review.

        To qualify for this enhancement, the defendant need only organize, supervise, or lead one

other participant. Id. at cmt. n.2. Because the § 3B1.1 enhancement distinguishes between

defendants who are an “organizer or leader,” who receive a four-level enhancement and defendants

who are “a manager or supervisor,” who receive a three-level enhancement, the sentencing court

reviews a number of factors to determine which enhancement applies:

        Factors the court should consider include the exercise of decision making authority,
        the nature of participation in the commission of the offense, the recruitment of
        accomplices, the claimed right to a larger share of the fruit of the crime, the degree
        of participation in planning or organizing the offense, the nature and scope of the
        illegal activity, and the degree of control and authority exercised over others.

Id. at cmt. n.4.

        The district court reviewed these factors and concluded that Currier qualified for the four-

level enhancement as an “organizer or leader.” In doing so, the district court relied on trial testimony

indicating that Currier recruited at least one new member, directed Michelle Huskey to rent vehicles

in her name for his out-of-state trips to purchase drugs, fronted large quantities of cocaine to Miller

and Cummings for resale, and would receive the proceeds of the cocaine Cummings sold. Viewing

all of these facts together, the district court correctly concluded that Currier acted as an organizer or

leader in the conspiracy to possess with intent to distribute cocaine.




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Nos. 11-5388/11-5777
United States of America v. Michael Currier/Ralph T. O’Neal, III

D. Admission of the July 2010 Recorded Telephone Conversation

        Currier argues that the district court erred in denying his motion in limine to suppress his

recorded telephone conversation with O’Neal. The recorded conversation at issue arose from

Currier’s visit to the Blount County Detention Center to speak with O’Neal following his arrest. It

is undisputed that any statements Currier made during the conversation were admissible as an

admission by a party opponent under Federal Rule of Evidence 801(d)(2). The sole issue is whether

the district court properly admitted portions of the conversation containing O’Neal’s statements. The

district court denied the motion in limine, finding O’Neal’s statements admissible under

Rule 801(d)(2)(E) as statements made by a co-conspirator as well as admissible as non-hearsay

statements to provide context to Currier’s admissions admitted under Rule 801(d)(2). We review

the district court’s denial of a motion in limine for abuse of discretion, United States v. Poulsen, 655

F.3d 492, 508 (6th Cir. 2011), and will “overturn a [district court’s] ruling only if [we] find[] that

the ruling was arbitrary, unjustifiable or clearly erroneous,” Plain Dealer Pub. Co. v. City of

Lakewood, 794 F.2d 1139, 1148 (6th Cir. 1986).

        Currier alleges that O’Neal’s statements cannot be admissible under Rule 801(d)(2)(E)

because the statements were not made “during and in furtherance of the conspiracy,” as the

conversation occurred after the conclusion of the conspiracy. Fed. R. Evid. 801(d)(2)(E). Currier

further alleges that the district court erred in admitting O’Neal’s statements, not for the truth of the

matter asserted, but rather to provide context to Currier’s admissions. Cf. United States v.

Townsend, 206 F. App’x 444, 450 (6th Cir. 2006); United States v. Stines, 313 F.3d 912 (unpub.

app’x) (6th Cir. 2002). This Court need not address the district court’s Rule 801(d)(2)(E) and

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United States of America v. Michael Currier/Ralph T. O’Neal, III

801(d)(2)(A) analysis, as even if the admission of O’Neal’s statements had been in error, that error

would be harmless. We find harmless error when, “with fair assurance . . . [we conclude that] the

judgment was not substantially swayed by the error . . . .” Kotteakos v. United States, 328 U.S. 750,

765 (1946); cf. United States v. Haywood, 280 F.3d 715, 724 (6th Cir. 2002) (applying this harmless

error standard in a criminal case). A review of the recorded conversation reveals that the content of

O’Neal’s statements was not prejudicial to Currier, particularly in light of the substantial evidence

of his guilt presented at trial. O’Neal’s statements did not present novel information regarding the

drug conspiracy that was not already admissible under Rule 801(d)(2)(A), such as Currier’s own

statements to law enforcement in 2003 and 2008 regarding his involvement with O’Neal and the

resale of cocaine, or other witness and co-conspirator testimony. As the introduction of O’Neal’s

statements would be harmless error, if error at all, relief is not merited on this claim.

                                      III. O’NEAL’S CLAIMS

A. Sufficiency of the Evidence

       O’Neal raises a sufficiency-of-the-evidence challenge to his conviction for conspiracy to

distribute, and possess with intent to distribute, five kilograms or more of cocaine hydrochloride and

fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. We

find the evidence sufficient to support a criminal conviction if, “after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original). The “defendant claiming insufficiency of the evidence bears a very heavy

burden,” United States v. White, 492 F.3d 380, 393 (6th Cir. 2007), as we will reverse the “judgment

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United States of America v. Michael Currier/Ralph T. O’Neal, III

for insufficiency of the evidence only if [the] judgment is not supported by substantial and competent

evidence upon the record as a whole,” United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005)

(alteration in original) (internal quotation marks and citations omitted).

       To convict for conspiracy under 21 U.S.C. § 846, “the government must [prove]: (1) an

agreement to violate drug laws, in this case 21 U.S.C. §§ 841; (2) knowledge and intent to join the

conspiracy; and (3) participation in the conspiracy.” United States v. Deitz, 577 F.3d 672, 677 (6th

Cir. 2009). O’Neal contends that while the evidence may establish that he sold drugs to confidential

informants, the government failed to prove the requisite agreement to conspire. The government

need not adduce a formal, verbal agreement because a “tacit or material understanding among the

parties will suffice.” United States v. Avery, 128 F.3d 966, 970-71 (6th Cir. 1997) (internal quotation

marks and citations omitted) Such an understanding may be gleaned from:

       Drug conspiracies often assume a vertical pattern of distribution, where each
       successive distributor sells a lower volume to any particular customer . . . . In a drug
       distribution “chain” conspiracy, it is enough to show that each member of the
       conspiracy realized that he was participating in a joint venture, even if he did not
       know the identities of every other member, or was not involved in all the activities
       in furtherance of the conspiracy. Evidence of repeat purchases provides evidence of
       more than a mere buyer-seller relationship, and the quantity of drugs may also
       support an inference of conspiracy.

United States v. Robinson, 547 F.3d 632, 641 (6th Cir. 2008) (internal citations and alterations

omitted).

       Here, the government presented testimony of co-conspirators from which the jury could

reasonably find O’Neal guilty of conspiring to distribute, and possess with intent to distribute, five

or more kilograms of cocaine hydrochloride and fifty grams or more of cocaine base. Co-conspirator


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United States of America v. Michael Currier/Ralph T. O’Neal, III

Cooper testified that during the seven-year conspiracy, O’Neal supplied him with roughly thirty

kilograms of cocaine. The government introduced a recorded telephone conversation between

O’Neal and Harvey, in which Harvey complained of being short changed during a controlled

purchase. O’Neal blamed Cooper for the mistake and said that he was unsure whether he could trust

Cooper anymore. Additionally, Drug Enforcement Special Agent James Blanton testified that

O’Neal confessed to trafficking between twelve and seventeen kilograms of cocaine, which he

obtained from multiple sources in multiple states. Given the co-conspirator testimony, recorded

conversations of O’Neal’s, and O’Neal’s own confession, “any rational trier of fact could have found

the elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis omitted).

B. Dismissal of O’Neal’s Pro Se Motions

       O’Neal contends that the district court abused its discretion in dismissing many of his pretrial

pro se motions as untimely, without considering their merits. Prior to trial, O’Neal filed a number

of untimely motions, raising meritless arguments such as the Supreme Court’s original jurisdiction

in his criminal proceedings. Although “pleadings submitted pro se will be accorded a measure of

leniency to assure that meritorious claims will not be dismissed for inartful draftsmanship,” Wolfel

v. United States, 711 F.2d 66, 67 (6th Cir. 1983), the district court’s dismissal of untimely and

meritless pretrial motions was within its discretion, as the decision was not “arbitrary, unjustifiable

or clearly unreasonable,” Plain Dealer Pub. Co., 794 F.2d at1148.

C. District Court’s Failure to Identify Alternate Jurors

       Following his conviction, O’Neal filed a motion for new trial, alleging a violation of Federal

Rule of Criminal Procedure 24(c). O’Neal contends that the district court erred by failing to “ensure


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United States of America v. Michael Currier/Ralph T. O’Neal, III

that a retained alternate [juror] does not discuss the case with anyone until that alternate replaces a

juror or is discharged.” Fed. R. Crim. P. 24(c). The district court denied O’Neal’s motion for new

trial, finding no evidence of a Rule 24(c) violation. We review a district court’s decision to deny a

motion for a new trial for abuse of discretion. United States v. Wettstain, 618 F.3d 577, 590 (6th Cir.

2010).

         The alleged error occurred when the district court charged the jury and instructed them to

retire and deliberate on the verdict. Because the court had not previously designated which two of

the fourteen jurors were alternates, all fourteen returned to the jury room to begin deliberations.

After approximately ten minutes, the court recognized its error, removed the two alternate jurors and

instructed them on their role as alternates. Once the alternate jurors were removed, the district court

delivered the verdict form and trial exhibits to the jury in the deliberation room. The twelve jurors

then returned to deliberate and subsequently reached a guilty verdict on all eleven counts.

         The district court acknowledged its error, but concluded that the error did not warrant a new

trial. Under these circumstances, the district court did not act arbitrarily in concluding that the

alternate jurors’ presence for the first ten minutes of deliberations, before the twelve non-alternate

jurors received the verdict form or trial exhibits, was not grounds to grant a new trial. See United

States v. DeBoer, 966 F.2d 1066 (6th Cir. 1992) (finding an alternate juror’s presence in the

deliberation room for approximately three minutes as the jury “select[ed] a foreman and

commence[d] its deliberations” to be harmless).




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United States of America v. Michael Currier/Ralph T. O’Neal, III

D. Constitutionality of Section 841(b)(1)(A) under the Fifth, Eighth, and Fourteenth Amendments

       O’Neal challenges the constitutionality of § 841(b)(1)(A)’s mandatory life sentence for

defendants with two or more prior convictions for a felony drug offense, contending that it violates

his Fourteenth Amendment right to due process, his Eighth Amendment right against cruel and

unusual punishment, and his Fifth Amendment right against double jeopardy. We have previously

considered and rejected all of O’Neal’s arguments. In United States v. Kelsor, we reiterated our

rejection of the “contention that the enhancement of a sentence under § 841(b) on the basis of prior

felony drug convictions violates double jeopardy.” 665 F.3d 684, 701 (6th Cir. 2011); see also

United States v. Pruitt, 156 F.3d 638, 645-46 (6th Cir. 1998); United States v. Flowal, 163 F.3d 956,

963 (6th Cir. 1998). Furthermore, our decision in Kelsor expressly rejected O’Neal’s contention that

§ 841(b)(1)(A) is cruel and unusual punishment because the “imposition of a life sentence without

parole for a third felony drug conviction is not ‘grossly disproportionate’ to the crime.” 665 F.3d

at 701; see also United States v. Hill, 30 F.3d 48, 50-51 (6th Cir. 1994). Finally, we have found that

the lack of discretion afforded to sentencing judges under § 841(b)(1)(A)’s mandatory life sentence

requirement does not offend due process. See United States v. Levy, 904 F.2d 1026, 1034 (6th Cir.

1990) (rejecting defendant’s argument that § 841(b)(1)(A) violates due process because it prevents

consideration of mitigating evidence and individualized sentencing determinations).

                                        III. CONCLUSION

       The Defendants’ convictions and sentences are AFFIRMED.




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