                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0600n.06

                                           No. 11-5693
                                                                                           FILED
                          UNITED STATES COURT OF APPEALS                              Jun 08, 2012
                               FOR THE SIXTH CIRCUIT
                                                                                LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE MIDDLE
                                       )                  DISTRICT OF TENNESSEE
JOSEPH WOLCOTT,                        )
                                       )
                                                                  OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE, SUTTON, and STRANCH, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Following his conviction for drug trafficking,

money laundering, unlawful gambling, and animal fighting, Defendant-Appellant Joseph Wolcott

appeals the district court’s denial of his motion to suppress evidence discovered as the result of a

wiretap. Wolcott also appeals various aspects of his 276-month sentence, including the application

of a mandatory-minimum sentence based on a prior felony drug conviction and a sentencing

enhancement for a leadership role in the charged offense. Finally, Wolcott contends that his sentence

was procedurally and substantively unreasonable. We AFFIRM the denial of the motion to suppress.

We also hold that the district court did not err in applying the mandatory-minimum sentence and the

leadership-role enhancement and AFFIRM Wolcott’s sentence.

                                       I. BACKGROUND
No. 11-5693
United States v. Wolcott


       In early 2008, after several years of receiving tips from confidential sources, the federal Drug

Enforcement Agency (“DEA”), Tennessee Bureau of Investigation, and Kentucky State Police began

investigating a suspected drug-trafficking, money-laundering, illegal-gambling, and cockfighting

operation in central Kentucky and middle Tennessee.            The investigation focused on three

individuals—Wolcott, Jeffery Copas, and Jerry Glass—and their associates.

       Because previous informants either were incarcerated or refused to cooperate further, law-

enforcement officials began working with an individual identified as CS-12 in an attempt to infiltrate

the operation. CS-12 and a fellow informant, CS-11, attended a series of cockfights in Kentucky,

where they arranged to purchase marijuana from Bruce Ferguson, a suspected participant in the drug-

trafficking operation. The two informants travelled to Ferguson’s house for the transaction, which

was recorded by CS-12; law-enforcement officials established surveillance at the house during the

controlled buy. Ferguson subsequently contacted CS-12 to discuss the possibility of future

transactions. CS-12 later met Jeffery Copas, who invited CS-12 to an invitation-only cockfight in

eastern Kentucky, which would also be attended by Ferguson, Glass, and Wolcott. At the invitation-

only fight, Copas invited CS-12 “to come and stay at [Copas’s] residence sometime so that Jeffery

Copas could show CS-12 some chickens and different grades/types of marijuana.” R.522-2 (DEA

Aff.) at 28, ¶ 60 (Page ID# 1649). The affidavit does not state whether CS-12 ever accepted this

invitation. Over the next several months, CS-12 had a series of telephone conversations with

Ferguson related to the possibility of additional marijuana purchases. During this same period, the

government received pen register data from Ferguson’s cell phone, which revealed hundreds of calls


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No. 11-5693
United States v. Wolcott


to and from phone numbers associated with Glass, Copas, and Wolcott. On July 11, 2008, CS-12

participated in a second controlled buy at Ferguson’s house.

           On July 14, 2008, DEA officials requested authorization to engage in electronic surveillance

of Ferguson’s cell phone. Pursuant to Title III of the Omnibus Crime Control and Safe Streets Act

of 1968, the officials submitted an application and accompanying affidavit to the district court

explaining why non-wiretap techniques were unlikely to succeed and thus why wiretap authority was

necessary. See 18 U.S.C. § 2518. Specifically, the affidavit described why continued reliance on

the informants would be an inadequate means of meeting the investigation’s ultimate objective of

discovering and dismantling the full scope of the operation. The informants had been unable to

gather information regarding “the identities and roles of the sources of supply for the drugs[,] . . . the

distribution of the funds, the location and existence of records, or the resources used to finance the

Wolcott Organization’s drug business[, and] . . . how the Wolcott Organization moves and launders

the proceeds generated from the sale of cocaine and marijuana.” R.522-2 at 43, ¶ 92 (Page ID#

1663). In addition, CS-11 and CS-12 had not had the opportunity to meet Glass or Wolcott and had

not purchased drugs directly from Copas. Finally, CS-11 refused to testify and was thus of limited

utility.

           The district court authorized the wiretap of Ferguson’s cell phone for 30 days, and

subsequently authorized additional wiretaps of cell phones belonging to Wolcott and Kevin




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No. 11-5693
United States v. Wolcott


Wolcott.1 Based on information gleaned from these wiretaps, the government executed search

warrants at Wolcott’s home in Crossville, Tennessee and his farm in Sparta, Tennessee, seizing

drugs, drug paraphernalia, and cash. The wiretaps also revealed conversations related to a sports-

betting operation and an arrangement between Wolcott and Darrell Tommy Jones in which Jones

would buy used vehicles with Wolcott’s money, resell the vehicles, and return the proceeds to

Wolcott.

       In December 2008, a federal grand jury indicted Wolcott and twelve others on charges related

to drug trafficking and unlawful gambling. Superseding indictments added charges for money

laundering and animal fighting.2 Prior to trial, Wolcott filed a motion to suppress the evidence

derived from the wiretap as the fruit of illegal surveillance, arguing that the government had failed

to show why electronic surveillance was necessary. The district court denied this motion, and the

case proceeded to trial.

       The jury found Wolcott guilty on all counts. The district court calculated Wolcott’s

sentencing range under the United States Sentencing Guidelines (“U.S.S.G.”) as 262–327 months

of imprisonment. This range included a 240-month mandatory-minimum sentence for the drug

charge based on the district court’s finding that Wolcott had a previous felony drug conviction, see


       1
       Kevin Wolcott is Joseph Wolcott’s son. All references to “Wolcott” in this opinion are to
Joseph Wolcott.
       2
         The charges against Wolcott consisted of conspiracy to distribute and possession with intent
to distribute over 1,000 kilograms of marijuana, traveling in interstate commerce to distribute the
proceeds of an unlawful activity, conducting an illegal gambling business, conspiracy to commit
money laundering, and sponsoring and exhibiting an animal in an animal fighting venture.

                                                 4
No. 11-5693
United States v. Wolcott


21 U.S.C. § 841(b)(1)(A), and a four-level enhancement pursuant to U.S.S.G. § 3B1.1(a) based on

Wolcott’s role as an organizer or leader of the drug-trafficking operation. After considering the

government’s request for a 300-month sentence, the court sentenced Wolcott to 240 months of

imprisonment for the drug conviction and 36 months of imprisonment for the money-laundering,

gambling, and animal-fighting convictions, with the sentences running consecutively for a total of

276 months of imprisonment.3 The court also imposed ten years of supervised release.

       Wolcott timely appealed, arguing that the district court erred in denying his motion to

suppress and in imposing the 276-month sentence. As to the sentence, Wolcott argues that the

district court should not have imposed the mandatory minimum because the government did not

prove beyond a reasonable doubt that he had a prior felony drug conviction and that his Sixth

Amendment rights were violated when the court, rather than a jury, found that he had such a

conviction. In addition, Wolcott argues that the four-level leadership-role enhancement was

improper.    Finally, Wolcott contends that the sentence was procedurally and substantively

unreasonable because the district court did not explain its reasons for selecting 276 months or for

ordering that the 240-month mandatory minimum and the additional 36 months run consecutively.

                                           II. ANALYSIS



       3
          The transcript of the sentencing hearing reports the district judge as stating, “there will be
36 months on those four counts that will run concurrent” but then immediately thereafter stating, “for
a total sentence of 276 months.” R.854 at 50 (Page ID# 4075). Neither party asked for clarification.
It is thus unclear whether the judge misspoke or if “concurrent” is a typographical error. The
judgment states that the sentences will run consecutively, and Wolcott does not contend that the
district court actually imposed concurrent sentences.

                                                   5
No. 11-5693
United States v. Wolcott


A. Necessity of the Wiretap

       Wolcott argues that the district court should have suppressed all evidence derived from the

three wiretaps because the government’s initial affidavit requesting wiretap authority failed to meet

the “necessity requirement” of 18 U.S.C. § 2518. When evaluating a district court’s denial of a

motion to suppress evidence derived from a wiretap, we review findings of fact for clear error and

questions of law de novo. United States v. Rice, 478 F.3d 704, 709 (6th Cir. 2007) (citing United

States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002)). We generally “‘accord great deference to the

determinations of the issuing judge.’” Id. (quoting United States v. Corrado, 227 F.3d 528, 539 (6th

Cir. 2000)). Because “suppression is the appropriate remedy for a violation under Title III,” the

government cannot use evidence at trial that was discovered by means of a wiretap that fails to

satisfy the necessity requirement. Id. at 710.

       Under § 2518, a law-enforcement official’s application for wiretap authority must contain

“a full and complete statement as to whether or not other investigative procedures have been tried

and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”

18 U.S.C. § 2518(1)(c). The necessity requirement ensures that a wiretap is not used as “the ‘initial

step in [a] criminal investigation,’” Rice, 478 F.3d at 710 (quoting United States v. Giordano, 416

U.S. 505, 515 (1974)), or is otherwise “‘resorted to in situations where traditional investigative

techniques would suffice to expose the crime,’” id. (quoting United States v. Alfano, 838 F.2d 158,

163 (6th Cir. 1988)). Accordingly, the application must demonstrate that the government gave

“‘serious consideration to the non-wiretap techniques prior to applying for wiretap authority’” and


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No. 11-5693
United States v. Wolcott


explain why, under the particular circumstances at hand, such techniques would be, or had already

proven to be, inadequate. Stewart, 306 F.3d at 305 (quoting United States v. Lambert, 771 F.2d 83,

91 (6th Cir. 1985)). Nonetheless, the government “need not prove the impossibility of other means

of obtaining information,” and, relatedly, “the mere fact that some investigative techniques were

successful in uncovering evidence of wrongdoing does not mandate that a court negate the need for

wiretap surveillance.” Id.

       Wolcott chiefly contends that the wiretap was unnecessary because the government was

already enjoying significant investigatory success through the use of a confidential informant. As

described above, the DEA affidavit detailed how CS-12 had purchased marijuana from Ferguson on

multiple occasions, discussed further drug activity with Ferguson and Copas, and attended at least

one invitation-only cockfight which Copas and Wolcott also attended. Wolcott identifies CS-12’s

interactions with Copas, whom the affidavit describes as one of the leaders of the operation, as

evidence that CS-12 had access to higher-ups and thus that the wiretap was not needed to achieve

the government’s objectives. In particular, Wolcott points to Copas’s invitation for CS-12 to stay

at Copas’s house and see his chickens and marijuana as an opportunity for CS-12 to advance within

the operation’s hierarchy and to learn more about its mechanics and scope.

       Continued reliance on CS-12 might have led the government to more of the big-picture

information it sought, but the government also offers persuasive reasons why such an approach

would have been inadequate. CS-12’s primary interaction with Ferguson was in the role of buyer,

which the affidavit explained was unsustainable due to the steep price Ferguson charged for


                                                7
No. 11-5693
United States v. Wolcott


marijuana. Moreover, Ferguson was a relatively low-level participant in the operation and thus may

not have had much information to share.

       The interactions between CS-12 and Copas likewise carried limitations. As with his

interactions with Ferguson, CS-12’s opportunity for continued participation in the operation appears

to have been limited to the role of buyer. Even Copas’s invitation, upon which Wolcott heavily

relies, was for CS-12 to “come and stay at [Copas’s] residence sometime so that Jeffery Copas could

show CS-12 some chickens and different grades/types of marijuana.” R.522-2 at 29, ¶ 60 (Page ID#

1649). Copas did not invite CS-12 to take on a leadership role in the operation or even, as Wolcott

characterizes it in his appellate brief, to learn about the operation’s objectives. Moreover, not all

opportunities for an informant’s advancement within the target operation render a wiretap

unnecessary. In United States v. Woods, 544 F.2d 242, 257 (6th Cir. 1976), we affirmed the use of

wiretap evidence even though a government informant had the opportunity to become a lieutenant

in the targeted crime organization. “[E]ven as a lieutenant,” we reasoned, “[the informant] would

have had difficulty in learning all the complex details of the widespread organization, and its aiders

and abettors.” Id. The same difficulty would seem to apply here.4

       The affidavit also describes the other non-wiretap techniques that the officers had employed

or considered employing, including pen registers and physical surveillance, as well as the likely

inadequacy of other techniques, such as search warrants or witness interviews. Wolcott makes no


       4
        Wolcott correctly notes that, upon the government’s advice, the informant in Woods declined
the opportunity to serve as a lieutenant. See 544 F.2d at 257. Our decision that the wiretap satisfied
the necessity requirement did not depend on this fact, however.

                                                  8
No. 11-5693
United States v. Wolcott


sustained effort to challenge the affidavit’s description of the inadequacy of these other techniques.

Apart from his arguments regarding the use of confidential informants, the sole element of the

affidavit he attacks is the contention that physical surveillance would have been significantly

difficult.   The affidavit adequately explains why, under the specific circumstances of this

investigation, physical surveillance would not likely have been successful. First, law enforcement

had been unable to identify the residences of some of the operation’s suspected leaders, including

Wolcott. Other potential targets, including Copas, lived in rural areas with minimal traffic where

attempts at surveillance would be easily noticed.

        We make one closing observation. In wiretap cases, the government often relies on the

argument that a conspiracy of any significant size necessitates wiretap authority because traditional

investigatory tools are unlikely to infiltrate such an operation to a sufficient height and breadth to

reveal the full extent of its reach. See, e.g., United States v. Washington, 112 F. App’x 501, 504 (6th

Cir. 2004) (unpublished opinion); Stewart, 306 F.3d at 305; Woods, 544 F.2d at 257 n.11.

Suspicions of a conspiracy that extends beyond a few identifiable individuals will not always warrant

the authorization of wiretap authority. However, the government has adequately shown the necessity

of such authority under the circumstances presented in this case. The district court did not err in

denying Wolcott’s motion to suppress.

B. Sentencing

        Wolcott appeals his sentence of 276 months of imprisonment on three grounds: (1) the

district court erroneously applied a mandatory-minimum sentence based on the finding that Wolcott


                                                  9
No. 11-5693
United States v. Wolcott


had a prior felony drug conviction; (2) the court improperly enhanced his offense level for having

a leadership role in the criminal activity; and (3) the sentence was procedurally and substantively

unreasonable. In the sentencing context, we review a district court’s factual findings for clear error

and its legal determinations de novo. United States v. Canestraro, 282 F.3d 427, 431 (6th Cir.

2002). We generally review the reasonableness of the sentence itself for an abuse of discretion.

United States v. Harmon, 607 F.3d 233, 236 (6th Cir. 2010) (citing Gall v. United States, 552 U.S.

38, 51 (2007)). When a party fails to object to an aspect of the sentence before the district court,

however, we review for plain error. Id.

        1. Mandatory Minimum

        Wolcott puts forth two reasons why the district court erred in determining that he was subject

to a mandatory-minimum sentence of 240 months of imprisonment for the drug crime. First,

Wolcott argues that his Sixth Amendment rights were violated when the court, rather than a jury,

found that he had a prior felony drug conviction that triggered the mandatory minimum. Second,

he contends that the government did not prove beyond a reasonable doubt that he had such a

conviction.

                a. Sixth Amendment

        Wolcott argues that his Sixth Amendment right to a trial by jury was violated when the

district court, rather than a jury, made the factual finding that Wolcott had a prior felony drug

conviction, a finding that enhanced his sentence. However, Wolcott concedes that the Supreme

Court has held that judicial fact-finding regarding the existence of a prior conviction does not violate


                                                  10
No. 11-5693
United States v. Wolcott


the Sixth Amendment. See Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998);

United States v. Martin, 526 F.3d 926, 941 (6th Cir. 2008). “[T]he continued viability of

Almendarez-Torres is not for this Court to decide,” but must await an authoritative pronouncement

from the Supreme Court. Martin, 526 F.3d at 942.

               b. Proof of a Prior Felony Drug Conviction

       A defendant who commits certain drug crimes faces a mandatory-minimum sentence of 240

months of imprisonment if he has a prior conviction for a felony drug offense. 21 U.S.C.

§ 841(b)(1)(A). Prior to Wolcott’s trial, the government filed an information pursuant to 21 U.S.C.

§ 851 alleging that Wolcott was convicted in Tennessee state court in 1987 of the felony drug offense

of selling marijuana. As proof of the prior conviction, the government presented a copy of the

judgment against a Joseph M. Wolcott from the Criminal Court of Cumberland County. At the

sentencing hearing, DEA Agent Billy Joe Mundy testified that the name, date of birth, and Social

Security number listed on the state-court judgment matched the information on Wolcott’s 2008

driver’s license. In addition, Agent Mundy testified that he was involved in the investigation that

led to the 1987 conviction, even though he was not personally involved in the case itself, and that

he recognized Wolcott from that investigation.

       Wolcott argues that the government’s evidence was insufficient to prove beyond a reasonable

doubt that he was the same Joseph Wolcott who was convicted of selling marijuana in Cumberland




                                                 11
No. 11-5693
United States v. Wolcott


County in 1987.5 Wolcott insists that the government must present more compelling evidence of

identity, such as contemporaneous fingerprint records or a mug shot.

       We have not yet had occasion to determine the nature of the government’s burden in

establishing that a defendant was the person who committed the prior crime that would trigger the

statutory enhancement of 21 U.S.C. § 841(b)(1)(A). None of our sister circuits has held that

fingerprint records from the prior conviction are required. Wolcott cites Fourth and Tenth Circuit

cases in which the court noted the absence of such records in holding that the government had failed

to meet its burden, but in both cases the other identifying information which the government offered

did not directly match the defendant. See United States v. Kellam, 568 F.3d 125, 144–45 (4th Cir.

2009) (inconsistent spelling of names); United States v. Green, 175 F.3d 822, 834–36 (10th Cir.

1999) (different name, year of birth, and address). Other courts have held that fingerprint records

or photographs are not always required. See United States v. Gonzalez, 625 F.3d 824, 827 (5th Cir.

2010); United States v. Okafor, 285 F.3d 842, 848 (9th Cir. 2002).

       We need not articulate a general rule as to when, if ever, the government must present such

identifying evidence in order to match a defendant to the perpetrator of a prior crime. In this case,

the district court did not err in determining, based on the matching name, date of birth, and Social

Security number, that the Joseph Wolcott who sold marijuana to an undercover officer in




       5
        For purposes of the enhancement, the government must prove any issue of fact related to the
prior conviction beyond a reasonable doubt. 21 U.S.C. § 851(c)(1).

                                                 12
No. 11-5693
United States v. Wolcott


Cumberland County in 1987 was the same Joseph Wolcott who stood before the court awaiting

sentencing in 2011.

        2. Leadership-Role Enhancement

        U.S.S.G. § 3B1.1 provides for (a) a four-level enhancement in the offense level “[i]f the

defendant was an organizer or leader of a criminal activity that involved five or more participants

or was otherwise extensive,” (b) a three-level enhancement if the defendant was a manager or

supervisor of such an activity, and (c) a two-level enhancement if the defendant was “an organizer,

leader, manager, or supervisor in any criminal activity other than described in (a) or (b).” U.S.S.G.

§ 3B1.1. The applicability of § 3B1.1 thus has two elements: (1) “the size of a criminal

organization,” and (2) “the degree of the defendant’s responsibility.” Id. cmt. background.

        The operation in this case clearly involved five or more criminally responsible participants;

indeed, the government indicted twelve other individuals at the same time as Wolcott. Wolcott does

not contend otherwise, but focuses on his role in the operation. Accordingly, the first element for

applicability of § 3B1.1 is satisfied.

        Wolcott does not dispute that he served in a leadership role with regards to Danny Brown,

a co-defendant who pleaded guilty, but characterizes his role with respect to any other players in the

operation as that of a buyer or seller without any degree of control. See United States v. Schultz, 14

F.3d 1093, 1099 (6th Cir. 1994) (“[M]ere buying and selling, without other evidence, is not

sufficient to show that a defendant is a leader, organizer, manager, or supervisor.”). As we have

interpreted § 3B1.1, however, a leadership role as to one other participant is enough. We have held


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No. 11-5693
United States v. Wolcott


that “[i]t is not necessary . . . for a defendant to have led or directed five individuals to receive this

sentencing enhancement.” United States v. Owusu, 199 F.3d 329, 347 (6th Cir. 2000). Instead,

§ 3B1.1(a) “may apply ‘[i]f the defendant organized or led at least one participant, and if the activity

involved five or more people or was otherwise extensive.’” Id. (quoting United States v. Ward, 68

F.3d 146, 151 (6th Cir. 1995)); see also U.S.S.G. § 3B1.1 cmt. n.2 (2010) (“To qualify for an

adjustment under this section, the defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants.”). The evidence shows that Wolcott instructed Brown

to store marijuana at Wolcott’s farmhouse (where Brown lived), make deliveries to customers at the

time and place arranged by Wolcott, and maintain a ledger accounting for all sales. Wolcott paid

Brown for his services. Based on these facts, the district court appropriately concluded that Wolcott

“‘organized or led at least one participant.’” Owusu, 199 F.3d at 347 (quoting Ward, 68 F.3d at 151).

        Because the government satisfied both elements for a four-level enhancement under

§ 3B1.1(a) based on Wolcott’s leadership role in the criminal activity, the district court did not err

in applying the enhancement.

        3. Procedural and Substantive Reasonableness

        Finally, Wolcott argues that the 276-month sentence was procedurally and substantively

unreasonable because the district court failed adequately to explain its reasons for the sentence or

to consider the 18 U.S.C. § 3553(a) sentencing factors. Wolcott makes this argument as to both the

general reasonableness of the sentence and the decision that the 36-month sentence for the money-




                                                   14
No. 11-5693
United States v. Wolcott


laundering, gambling, and animal-fighting convictions would run consecutively with the mandatory

minimum 240-month sentence for the drug conviction.

        Wolcott did not raise these objections before the district court, even after the court asked at

the conclusion of the sentencing hearing whether either party had any substantive or procedural

objections. Accordingly, we review the adequacy of the district court’s explanation of its reasons

for the sentence for plain error. United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004).6

Under this standard, we will reverse the district court only if the defendant shows “(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) (internal quotation marks omitted).

        When imposing a sentence, the district court must consider the § 3553(a) sentencing factors

and any non-frivolous arguments for leniency raised by the defendant, and the court must adequately

explain the reasons for the sentence. See Rita v. United States, 551 U.S. 338, 356 (2007) (“The

sentencing judge should set forth enough to satisfy the appellate court that he has considered the



        6
         Normally, substantive-reasonableness challenges need not be raised before the district court
and thus do not face plain-error review on appeal. United States v. Massey, 663 F.3d 852, 857 (6th
Cir. 2011) (citing United States v. Vonner, 516 F.3d 382, 389, 391–92 (6th Cir. 2008) (en banc)).
However, Wolcott’s substantive-reasonableness claim is based on the district court’s failure to
explain its reasons for the sentence or to consider the § 3553(a) factors, which is subject to plain-
error review if not raised before the district court. Vonner, 516 F.3d at 386, 390. With respect to
a defendant’s challenge to the adequacy of a district court’s explanation, “‘the procedural and
substantive components of our reasonableness inquiry appear to overlap.’” United States v. Ross,
375 F. App’x 502, 508 (6th Cir. 2010) (unpublished opinion) (quoting United States v. Herrera-
Zuniga, 571 F.3d 568, 579 (6th Cir. 2009)).

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No. 11-5693
United States v. Wolcott


parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”).

Likewise, when exercising its discretion whether multiple terms of imprisonment will run

consecutively or concurrently, the court “shall consider, as to each offense for which a term of

imprisonment is being imposed, the factors set forth in section 3553(a).” 18 U.S.C. § 3584(b). A

district court abuses its discretion when it “fails to ‘make generally clear the rationale under which

it has imposed the consecutive sentence.’” Ross, 375 F. App’x at 506 (quoting United States v.

Johnson, 553 F.3d 990, 998 (6th Cir. 2009)).

       At sentencing, Wolcott’s primary arguments for leniency were his age and poor health. The

district court addressed and, to an extent, agreed with these arguments at the sentencing hearing;

indeed, the court rejected the government’s preferred sentence of 300 months due to the court’s

concern with Wolcott’s health. Wolcott argues on appeal that even a sentence of 276 months is

inconsistent with the district court’s expressed concern with imposing a de facto life sentence.

Although Wolcott may have wanted the district court to show even greater leniency based on his age

and health, the court’s decision not to do so does not render the sentence unreasonable.

       In addition to addressing Wolcott’s arguments for leniency, the district court considered

several § 3553(a) factors, albeit in a somewhat limited fashion. The court calculated the Guidelines

range and considered what sentences were statutorily available for each offense. In addition to the

mandatory-minimum sentence of twenty years for drug trafficking, the gambling and animal-fighting

offenses each carried up to five years in prison and the money-laundering offense carried up to

twenty years in prison. The court’s rulings on the sentencing enhancement and the mandatory-


                                                 16
No. 11-5693
United States v. Wolcott


minimum sentence show that the court clearly knew that Wolcott occupied a leadership role in the

criminal operation and had a criminal history. Finally, the court stated that the length of the sentence

might allow for some hope that Wolcott would be released within his lifetime.

        The seriousness of the crimes and Wolcott’s role in committing them also supports having

the sentences run consecutively. Although the district court did not engage in an explicit discussion

of the consecutive/concurrent issue, we have held that a sentencing court need not always conduct

a separate § 3553(a) analysis as to the consecutive/concurrent issue if it does so as to the length of

each sentence and the context makes clear that the same analysis applies to both issues. United

States v. Berry, 565 F.3d 332, 343 (6th Cir. 2009). Here, the court announced that the sentences

would run consecutively immediately after announcing the length of each sentence. Cf. Ross, 375

F. App’x at 507 (describing the district court’s discussion of the § 3553(a) factors, which came after

the court’s ruling that the sentences would run consecutively, as “divorced” from the

concurrent/consecutive issue).

        Wolcott argues that the fact that he committed multiple crimes is not by itself sufficient to

justify consecutive sentences. The district court’s emphasis on the need for the sentence to account

for Wolcott’s numerous crimes was not limited to the fact that he committed other crimes, however,

but also considered the seriousness of those crimes, each of which carried the potential for multiple-

year terms of imprisonment on its own. Accordingly, Wolcott has not shown that the district court’s

explanation of its sentence was plain error.

                                        III. CONCLUSION


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No. 11-5693
United States v. Wolcott


       Because the government has adequately shown the necessity of wiretap authority under the

circumstances presented in this case, we AFFIRM the district court’s denial of Wolcott’s motion to

suppress evidence gathered as the result of electronic surveillance. We likewise AFFIRM Wolcott’s

sentence of 276 months of imprisonment.




                                               18
