                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0829n.06
                                                                                          FILED
                                           No. 11-6037
                                                                                     Aug 01, 2012
                          UNITED STATES COURT OF APPEALS
                                                                               LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )          ON APPEAL FROM THE
v.                                                   )          UNITED STATES DISTRICT
                                                     )          COURT FOR THE EASTERN
JAY A. SHEPHARD,                                     )          DISTRICT OF KENTUCKY
                                                     )
       Defendant-Appellant.                          )


       Before: SILER and KETHLEDGE, Circuit Judges; MURPHY, District Judge.*

       STEPHEN J. MURPHY, III, District Judge. Jay Shephard was convicted after a five-day

jury trial of conspiracy to distribute oxycodone and methadone, in violation of 21 U.S.C. §§ 846 and

841(a)(1), and of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1),

1956(a)(1)(A)(i), and (a)(1)(B)(i). He was sentenced on August 17, 2011, to 360 months as to count

one and 240 months as to count two, to be served concurrently, for a total of 360 months’

incarceration. Shephard argues on appeal that his sentence and conviction should be vacated for the

following reasons: (1) the district court erred by failing to provide a jury instruction regarding

multiple conspiracies; (2) there was a constructive amendment to the indictment; (3) his Fourth

Amendment rights were violated when the government placed GPS tracking devices in his co-

conspirators’ vehicles; (4) the district court erred by not requiring the jury to determine the pill

quantity attributable to him; (5) the district court erred by treating the Sentencing Guidelines as

       *
       The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 11-6037
United States v. Shephard

mandatory when considering the drug conversion table; (6) the district court erred in determining

the drug quantity attributable to him; and (7) the district court erred by relying on information at the

sentencing hearing that was obtained in violation of Kastigar v. United States, 406 U.S. 441 (1972).

Because we find Shephard's arguments lack merit, we AFFIRM.

                                          BACKGROUND

        Jay Shephard was charged in a third superseding indictment with conspiring with Evans

Moore and others to distribute oxycodone and methadone beginning “on or about a day in May,

2006” and continuing through “on or about May 21, 2009.” Third Superseding Indictment, R. 174.

Additionally, it charged that, during this same time period, Shephard conspired with others to acquire

real and personal property in Ohio and Michigan using proceeds from the unlawful distribution, in

order to disguise the nature, location, and source of the illegal drug proceeds. Id. The government

introduced evidence at trial that Shephard provided oxycodone to individuals who would increase

the price and sell the pills to others, who would then increase the price again and sell it to other

dealers or the ultimate users. The conspiracy began to unravel when Kentucky police detectives

arrested Rhonda Patrick for possession of oxycodone and sought her cooperation in identifying the

source of her drugs.

        Patrick admitted that she had been visiting Dayton, Ohio, where she acquired drugs from

Sunday Satterwhite and Karl Stevie Trammell. Watkins Tr. at 136, 151-53, R. 293. Patrick began

buying 80-milligram oxycodone pills from Satterwhite in 2006. Id. at 138; Satterwhite Tr. at 49, R.

294. Satterwhite was obtaining the pills from Tony Edwards in Detroit, Michigan at this time and

selling them in Dayton. Satterwhite Tr. at 48, R. 294. At some point prior to Edwards’ death in

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United States v. Shephard

September 2007, Satterwhite had a falling out with him, and began getting her pill supply from

Trammell, who was getting his supply from Shephard. Id. at 55, 59, 61. The 80-milligram

oxycodone pills Trammell and Satterwhite obtained from Shephard in 2007 and 2008 were

distributed in Dayton, Ohio and Hazard, Kentucky to other individuals, including Patrick, Evans

Moore, Edwin Kirkland, and Janele Pitts. See Mem. Order 4, R. 368. Trammell and Moore were

arrested in Perry County, Kentucky after they were stopped by police and found to have 402

oxycodone 80-milligram pills in their car. They were housed at Perry County jail where several

telephone calls between them and Shephard were recorded.

        The original indictment, filed May 8, 2009, charged Shephard, Moore, Pitts, and Kirkland

with conspiring to distribute oxycodone and methadone. Pitts and Moore were also charged with

distribution and attempted distribution. Trammell was prosecuted in a separate related action, along

with Satterwhite and seven others, for conspiracy to distribute and distribution of oxycodone from

March 2006 until May 5, 2008. United States v. Trammell, No. 08-00167 (E.D Ky. 2009). Shephard

was the only defendant not to enter a guilty plea. A jury ultimately found him guilty of conspiracy

charges based on a third superceding indictment, which named only Shephard and Moore as

defendants.

        After the jury found Shephard guilty of the conspiracy counts, the district court submitted the

issue of forfeiture to the jury. The jury returned a special verdict finding specific property listed in

the indictment was used in or acquired through Shephard’s illegal conduct. Special Verdict, R. 252.

The district court used the total market value of this property to calculate the pill amount attributable

to Shephard for sentencing purposes. Mem. Order 8, R. 368. The court determined the price of each

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United States v. Shephard

pill was $35 based on a proffer Shephard made to police on June 3, 2009. Id. at 3. This proffer was

considered only after Shephard elected to testify at the sentencing hearing and the prosecutor used

his prior statements for impeachment purposes. The court used the value of the forfeited property

and divided it by the price Shephard charged for each pill, to calculate that Shephard had sold 15,087

oxycodone 80-milligram pills. It then used the marijuana equivalency table provided in the United

States Sentencing Guidelines to determine his base offense level. After combining his base offense

level with his criminal history category, the district court found that Shephard’s advisory guideline

range for count one was 360 months to life imprisonment and sentenced him to 360 months’

imprisonment. Shephard now appeals his sentence and conviction, presenting seven issues for this

Court’s review.

                                           DISCUSSION

I. Multiple Conspiracies Instruction

       Shephard argues that the evidence presented at trial demonstrated the existence of two

conspiracies, and that the failure to provide the jury with an instruction regarding multiple

conspiracies allowed it to convict him based on evidence unrelated to his own conduct. He contends

that Satterwhite obtained oxycodone from Edwards from 2004 until 2007 and that this conspiracy

was separate from the one involving him, Satterwhite, and Trammell. He maintains that he was only

implicated in the second conspiracy, which involved Satterwhite and Trammell, from late 2007 until

May 2008.

       Because Shephard did not request a multiple conspiracies instruction and did not object to

the instruction given, this Court is limited to reviewing the issue for plain error. United States v.

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Osborne, 673 F.3d 508, 511 (6th Cir. 2012) (citing Johnson v. United States, 520 U.S. 461, 465-66

(1997)). To demonstrate plain error, Shephard must show “(1) error (2) that was plain, (3) that

affected substantial rights and (4) that, if uncorrected, would ‘seriously affect the fairness, integrity

or public reputation of judicial proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725,

732 (1993)).

        Shephard argues that “[t]he requisite need for a multiple conspiracy jury instruction centers

on the undisputed fact that Satterwhite relied completely on Tony Edwards as her source from 2004

up until 2007.” Appellant Br. 13. But, the fact that some members may have left the conspiracy

while others joined, does not mean that an entirely new conspiracy was formed. “A single

conspiracy is not transposed into a multiple one simply by lapse of time, change in membership, or

a shifting emphasis on its locale of operations.” United States v. Segines, 17 F.3d 847, 856 (6th Cir.

1994) (quoting United States v. Sanchez, 928 F.2d 1450, 1456 (6th Cir. 1991)). Conspiracies to

distribute narcotics are often “chain” conspiracies, involving numerous sales and resales of drugs,

and an agreement can be inferred from the interdependent nature of the criminal enterprise. United

States v. Deitz, 577 F.3d 672, 678 (6th Cir. 2009).

        Although the source of Satterwhite’s drugs changed when she stopped purchasing them from

Edwards, this fact did not change the common goal or nature of the scheme. “The principal

considerations to determine the number of conspiracies are the existence of a common goal, the

nature of the scheme, and the overlapping of the participants in various dealings.” United States v.

Warman, 578 F.3d 320, 341-42 (6th Cir. 2009) (quoting United States v. Smith, 320 F.3d 647, 652

(6th Cir. 2003)). Here, the goal and nature of the scheme remained the same when Shephard joined

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United States v. Shephard

and became Satterwhite’s source through Trammell. The relevant factors suggest the existence of

a single conspiracy in this case and, therefore, a multiple-conspiracies instruction was not warranted.

       Even assuming the evidence did show the existence of two separate conspiracies, and that

the district court erred by not instructing the jury accordingly, Shephard cannot show that the error

was “clear or obvious, rather than subject to reasonable dispute,” to meet the second prong of plain

error review. United States v. Ferguson, 681 F.3d 826, 833 (6th Cir. 2012) (quoting Puckett v.

United States, 556 U.S. 129, 135 (2009)). Additionally, he cannot show he was prejudiced by the

decision not to give a multiple conspiracies instruction. “[T]he primary risk associated with the

failure to give a multiple conspiracy instruction is the transference of guilt from defendants involved

in one conspiracy to defendants in another conspiracy, such that a defendant is convicted for a

conspiracy for which he was not indicted.” United States v. Caver, 470 F.3d 220, 246 (6th Cir.

2006). There was little risk of guilt transference in this case. At most, the evidence could have

demonstrated two conspiracies; Shephard was the only defendant tried; the trial only lasted five days;

and there was significant evidence of Shepard’s involvement in the conspiracy, including testimony

of co-conspirators, telephone records, and recordings of jail telephone calls between Shephard,

Moore, and Trammell. Shephard has failed to show he was convicted for a conspiracy other than

the one for which he was indicted. In light of this evidence, he cannot show he was prejudiced or that

his substantial rights were affected by the court’s decision not to provide a jury instruction on

multiple conspiracies.




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II. Constructive Amendment

       Shephard’s second argument is closely tied to his first. He contends a constructive

amendment occurred because the indictment and jury instructions stated the conspiracy began in

2006, but the evidence showed he was not involved in the conspiracy until “late 2007, after the

demise of Tony Edwards.” Appellant Br. 16. He argues that this allowed the jury to convict him

based on acts that took place outside the parameters of the indictment. Because Shephard did not

raise an objection before the district court that there had been a constructive amendment to or

variance from the terms of the indictment, this Court reviews the issue for plain error. United States

v. Benson, 591 F.3d 491, 497 (6th Cir. 2010).

       A constructive amendment occurs “‘when the terms of an indictment are in effect altered by

the presentation of evidence and jury instructions which so modify essential elements of the offense

charged that there is a substantial likelihood that the defendant may have been convicted of an

offense other than that charged in the indictment.’” Ferguson, 681 F.3d at 830 (quoting United

States v. Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002)). Because constructive amendments

infringe upon the Fifth Amendment’s grand jury guarantee, they are considered “per se prejudicial.”

Id. (quoting United States v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006)). Variances, however, are not

per se prejudicial. United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007). They generally occur

where the terms of the indictment are not changed, but the evidence submitted at trial “proves facts

materially different from those alleged in the indictment.” Id. (quoting Prince, 214 F.3d at 756-57).

A variance can be established based on the evidence submitted at trial. Id. at 522. Conversely, to

prove a constructive amendment occurred, a defendant must show that “the important functions of

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United States v. Shephard

an indictment were undermined by both the evidence presented and the jury instructions.” Id.

(quoting Hynes, 467 F.3d at 962).

        The indictment charges Shephard with conspiracy beginning “[o]n or about a day in May,

2006, the exact date unknown, and continuing through on or about May 21, 2009.” Third

Superseding Indictment 1-2, R. 174. Shephard claims, however, that the testimony presented at trial

showed his involvement did not begin until late 2007. Appellant Br. 17. Even accepting Shephard’s

argument on this point, what he has described is a variance, and not a constructive amendment since

the jury instructions tracked the indictment. For a variance to constitute reversible error, a defendant

must show that it affected some substantial right. Budd, 496 F.3d at 521-22. A defendant's

substantial rights are prejudiced if his defense is undermined by the change or if he could be

subjected to another prosecution for the same offense. Id. at 527. Shephard has failed to show how

the variance prejudiced any substantial right. Shephard joined an ongoing conspiracy and cannot

show there is a “substantial likelihood that [he] may have been convicted of an offense other than

the one charged in the indictment.” Id. at 521 (quoting United States v. Smith, 320 F.3d 647, 656

(6th Cir. 2003)).

III. GPS Information

        Shephard claims that GPS information gained from his co-conspirators' vehicles was used

in violation of his Fourth Amendment rights. He did not file a motion to suppress this information

prior to trial and, generally, the failure to do so results in a waiver of any objection to the evidence

on appeal. See United States v. Lopez-Medina, 461 F.3d 724, 738 (6th Cir. 2006). Although

Shephard contends that the Supreme Court’s recent decision in United States v. Jones, 132 S. Ct. 945

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United States v. Shephard

(2012), provides a basis for this Court to review his Fourth Amendment argument because it presents

a new constitutional rule, Jones did not create any new privacy right that would give Shephard

standing to contest the searches at issue.

       To prevail on his Fourth Amendment claim, Shephard must show that he had a legitimate

expectation of privacy that was violated by an illegal search. United States v. Washington, 573 F.3d

279, 282-83 (6th Cir. 2009). He has failed to make this showing. The government asserts “[i]t is

undisputed that the police did not place a tracker on any vehicle owned, driven, or occupied by

Shephard.” Appellee Br. 33. Shephard does not disagree with this statement and, therefore, has

failed to show he had any legitimate expectation of privacy in his co-conspirators' vehicles.

IV. Pill Quantity Determination

       Shephard submits as his fourth basis for appeal that “[t]he issue regarding Oxycontin pill

quantity is a material one that was constitutionally required to be submitted to the jury.” Appellant

Br. 20. But, he fails to provide any support for this argument. Shephard did not request that the jury

be instructed to determine the quantity of pills involved in his charged offense. Rather, when the

district court asked prior to the start of trial if there was a need to have the pill amount determined

by the jury, defense counsel responded that it wasn’t necessary and would be superfluous, since it

did not trigger a mandatory minimum. Pretrial Conference Tr. 57-58, R. 290. Thus, we review this

issue for plain error. Osborne, 673 F.3d at 511 (6th Cir. 2012).

       A district court is required to submit to a jury any fact, other than the fact of a prior

conviction, that increases the penalty for a crime beyond the statutory maximum, and this fact must

be proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The

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statutory maximum “is the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303

(2004) (emphasis omitted) (citing Ring v. Arizona, 536 U.S. 584, 602 (2002)).

        Here, a jury found Shephard guilty of count one of the indictment, conspiracy to distribute

oxycodone and methadone, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and of count two of the

indictment, conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a)(1),

1956(a)(1)(A)(i), and (a)(1)(B)(i). The indictment advised that the penalty for count one was “[n]ot

more than 20 years imprisonment,” but if the defendant had been convicted of a prior drug felony

then “[n]ot more than 30 years imprisonment.” Third Superseding Indictment 8, R. 174. The

maximum penalty for count two was twenty years’ imprisonment. Id. Because Shephard had a prior

drug felony he was subject to the thirty-year penalty on count one. Application of the thirty-year

maximum did not require a finding that a specific quantity of drugs was involved in the offense. 21

U.S.C. § 841(b)(1)(C). The district court sentenced Shephard within the statutory maximum. Thus,

the district court was not required to submit the issue of pill quantity to the jury, since it was not an

issue that increased the penalty for Shephard’s crime beyond the statutory maximum.

V. Sentencing Guidelines

        Shephard contends that the district court violated the requirements of Booker when it treated

the drug conversion table of the Sentencing Guidelines as mandatory. The Court reviews legal

conclusions regarding the Sentencing Guidelines de novo and factual findings for clear error.

United States v. Anderson, 526 F.3d 319, 323 (6th Cir. 2008).



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       The sentencing range provided by the guidelines is advisory; but the sentencing court must

still properly calculate and consider the Guidelines along with other statutory factors. United States

v. Booker, 543 U.S. 220, 245 (2005). Failing to calculate or improperly calculating the Guidelines

range is a significant procedural error. Gall v. United States, 552 U.S. 38, 51 (2007). After the range

is correctly calculated, the district court treats the range as advisory and considers other statutory

factors in determining the sentence to impose. Id. at 49–50. Here, the district court properly used

the drug conversion table of the Sentencing Guidelines to calculate Shephard's Guideline range.

Once the district court calculated the appropriate Guideline range it did not treat that range as

mandatory and, thus, did not err.

VI. Drug Quantity Calculation

       Shephard claims that the court improperly estimated the amount of oxycodone attributable

to him and that it “improperly used both the total market value of the property the jury found that

was subject to forfeiture, plus the money judgment of $225,000 found by the jury.” Appellant Br.

28. He argues the district court’s calculations resulted in “double counting.”

       The district court’s drug quantity determination is a factual finding that the Court reviews

for clear error. United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008). “A factual finding is

clearly erroneous ‘when the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.’” United States v. McGee, 494 F.3d 551, 554 (6th

Cir. 2007) (quoting Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006)). The district court’s

finding, regarding drug quantity used to compute the defendant’s sentence, "'must be supported by



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United States v. Shephard

a preponderance of the evidence.'" Benson, 591 F.3d at 502 (quoting United States v. Young, 553

F.3d 1035, 1051 (6th Cir. 2009)).

        When the exact quantity of drugs attributable to a defendant is undetermined, a court may

estimate the amount of drugs as long as a preponderance of the evidence supports the estimate.

Jeross, 521 F.3d at 570. This approximation of drug quantity “is not clearly erroneous if it is

supported by competent evidence in the record.” Id. Here, the district court issued a memorandum

order detailing the facts it found by a preponderance of the evidence, that formed the basis for its

sentencing decisions. See Mem. Order. R. 368. Rather than rely solely on the testimony of

Shephard’s co-conspirators, the district court “chose to use the objective valuations of the properties,

which the jury found by a preponderance of the evidence to be subject to forfeiture.” Id. at 8. The

court estimated that Shephard was responsible for 15,087 oxycodone 80mg pills, instead of the

40,000 pills recommended by the probation officer. Id. at 6-8. It arrived at this figure by

“considering the undisputed values of the properties which the jury found were subject to forfeiture

(Doc. #252), $678,325.24, less a credit for the amount of legitimate sources of income or loans

referenced in Doc. # 361 ($150,263.77), divided by the sales price of $35 per pill that Defendant was

charging Trammell.” Mem. Order 4, R. 368. A similar formula was approved by this Court in

Layne, in which the district court divided the amount of money seized from the defendant by the

price he charged for each unit of drugs to determine the amount of drugs attributable to the defendant

for sentencing. United States v. Layne, 192 F.3d 556, 578 (6th Cir. 1999). Shephard has failed to

show that the court erred in its calculation of the pill quantity attributable to him.



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VII. Immunized Statements

       Shephard's final argument is that his sentence should be vacated because the district court

relied on information gained from his proffer, in violation of Kastigar, to enhance his sentence.

Kastigar v. United States, 406 U.S. 441 (1972). Shephard did not object to the testimony that he

now claims violated his proffer agreement, and he did not object to the court’s consideration of

information gained from his proffer. Thus, we review the issue for plain error. United States v.

Powers, 500 F.3d 500, 505 (6th Cir. 2007).

       In Kastigar, the Court found that when the government seeks to compel testimony by

granting immunity as to the contents of an individual’s testimony, the scope of the privilege must

be as broad as that provided by the Fifth Amendment. Kastigar, 406 U.S. at 453. Kastigar has little,

if any, relevance to Shephard’s case because Shephard was not compelled to testify; rather, he

voluntarily took the stand at the sentencing hearing and his proffer was used to impeach his

statements. This use was permitted by the agreement that Shephard entered into with the

Government. Letter Agreement, R. 383-1. Shephard fails to demonstrate any breach of the

agreement or that the Court erred by considering his statements.

                                      III. CONCLUSION

       For the foregoing reasons, Shephard's conviction and sentence are AFFIRMED.




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