                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0617n.06

                                         Case No. 09-5853
                                                                                            FILED
                          UNITED STATES COURT OF APPEALS                               Aug 25, 2011
                               FOR THE SIXTH CIRCUIT
                                                                                 LEONARD GREEN, Clerk

 UNITED STATES OF AMERICA,                            )
                                                      )
         Plaintiff-Appellee,                          )
                                                      )       ON APPEAL FROM THE
                v.                                    )       UNITED STATES DISTRICT
                                                      )       COURT FOR THE EASTERN
 MELVIN L. CROMER,                                    )       DISTRICT OF KENTUCKY
                                                      )
         Defendant-Appellant.                         )
                                                      )
 _______________________________________              )

BEFORE: BATCHELDER, Chief Judge; ROGERS and SUTTON, Circuit Judges.

       ALICE M. BATCHELDER, Chief Judge. A jury convicted Melvin Cromer on two

counts: conspiracy to distribute and to possess with intent to distribute methamphetamine in

violation of 21 U.S.C. § 846, and traveling in interstate commerce to distribute methamphetamine

in violation of 18 U.S.C. § 1952. The district court sentenced him to 169 months in prison on one

count and 60 months on the other, to run concurrently. Cromer now appeals.

                                                 I.

       On November 1, 2006, Cromer and his friend, John Watkins, were stopped by a police officer

in Georgia because their vehicle was not displaying a registration plate. The vehicle belonged to

Watkins, who was sitting in the passenger seat; Cromer was driving. The men were traveling from

Kentucky. During the course of the traffic stop, the police officer asked the men what brought them

to Georgia. When they responded with conflicting stories, the officer called a K-9 unit to search the

car. Before the K-9 unit arrived, Watkins told the officer that there was methamphetamine in the
No. 09-5853, United States v. Cromer


glove box. Upon retrieving the methamphetamine (620.0 grams), the officer arrested both Watkins

and Cromer.

        Based in part on their knowledge of Cromer’s arrest in Georgia, federal authorities in

Kentucky applied for and received a warrant to search Cromer’s Kentucky residence. While Cromer

was still in custody in Georgia, the authorities searched his residence and discovered, among other

things, a refurbished 1971 Plymouth Duster (“Duster”) in Cromer’s garage. The officers seized the

Duster even though the warrant did not specifically authorize that action.

        Georgia subsequently dismissed the charges against Cromer because the supervising police

officer failed to appear at the probable cause hearing. Upon returning to Kentucky, Cromer went to

the DEA’s office, seeking the return of the Duster. The agents were busy when he arrived, but he

agreed to wait to speak to someone. Two agents eventually led Cromer to an interview room near

the lobby, where they told him that they could not release his car and that he would have to file a

claim through the appropriate administrative procedures. They then asked him about his recent arrest

in Georgia, prefacing their questions with assurances that Cromer was free to leave at any time and

did not have to answer them. Cromer told the agents that he had been traveling with Watkins to

repair the wheel bearings on Watkins’ car. He also discussed his relationship with Watkins and

mentioned that Watkins occasionally gave him methamphetamine as payment for debts Watkins

owed him.

        On April 26, 2007, police interviewed Watkins pursuant to a cooperation agreement.

Watkins told the police that he and Cromer had traveled to Georgia to buy methamphetamine, which

they planned to bring back to Kentucky for distribution. He explained that because he had bad vision

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No. 09-5853, United States v. Cromer


and did not want to risk driving himself, he hired Cromer to drive. Several months later, police also

interviewed a man named Michael Joe McFerron, who consented to discuss his knowledge of the

drug-trafficking activities of Watkins, Cromer, and others.            McFerron described various

methamphetamine transactions in which Cromer and Watkins had been involved.

        A Kentucky grand jury indicted Cromer and Watkins on various drug charges. Watkins pled

guilty and subsequently cooperated with the government. Cromer pled not guilty, proceeded to jury

trial, and was convicted of conspiracy to possess with intent to distribute and to distribute

methamphetamine (Count 1), and traveling in interstate commerce with intent to distribute

methamphetamine (Count 2). On both counts, Cromer’s offense level was 34 and his criminal

history category was I, resulting in a Guidelines range of 151 to 188 months in prison. The statutory

maximum for Count 2 was 60 months in prison. The district court sentenced Cromer to 169 months

in prison on Count 1 and 60 months in prison on Count 2, to be served concurrently.

        Cromer filed this timely appeal in which he challenges various aspects of his conviction and

sentence.

                                                  II.

        Cromer first argues that the district court’s jury instructions were erroneous because they did

not require the jury to reach a unanimous verdict on Count 1. Specifically, he takes issue with the

district court’s instruction that:

        Count 1 of the indictment . . . accuses the defendant of committing the crime of
        conspiracy in more than one possible way. The first is that he possessed with the
        intent to distribute . . . methamphetamine. The second is that he distributed . . .
        methamphetamine. The government does not have to prove both of these for you to
        return a guilty verdict on this charge. Proof beyond a reasonable doubt on any one

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No. 09-5853, United States v. Cromer


        of these is enough. But in order for you to return a guilty verdict, all 12 of you must
        agree that one of these, at least one of these, has been proved. However, all of you
        need not agree that the same one has been proved.

        “This court reviews jury instructions as a whole to determine whether they fairly and

adequately inform the jury of relevant considerations and explain the applicable law to assist the jury

in reaching its decision.” United States v. Ham, 628 F.3d 801, 810 (6th Cir. 2011) (emphasis in

original) (internal quotation marks omitted). Reversal is warranted “only if the instructions, viewed

as a whole, were confusing, misleading, or prejudicial.” United States v. Harrod, 168 F.3d 887, 892

(6th Cir. 1999) (internal quotation marks omitted).

        The jury instructions were not erroneous. A conspiracy charge under 21 U.S.C. § 846

requires the government to prove three elements beyond a reasonable doubt: “(1) an agreement to

violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the

conspiracy.” United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996); see also 21 U.S.C. § 846.

Although a jury must unanimously find that the government has proven each element of a crime, it

“need not always decide unanimously which of several possible sets of underlying brute facts make

up a particular element, say, which of several possible means the defendant used to commit an

element of the crime.” Richardson v. United States, 526 U.S. 813, 817 (1999). In the context of §

846, therefore, the jury need only unanimously decide that there was an agreement to violate drug

laws—in this case, 21 U.S.C. § 841(a)(1). Section 841(a)(1) criminalizes both possession with intent

to distribute and distributing a controlled substance. Proof of a conspiracy to possess with intent to

distribute methamphetamine and to distribute methamphetamine are simply different means of

establishing a violation of § 846.

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No. 09-5853, United States v. Cromer


        Furthermore, a defendant generally is not entitled to a specific unanimity instruction unless

“1) a count is extremely complex, 2) there is variance between the indictment and the proof at trial,

or 3) there is a tangible risk of jury confusion.” United States v. Sanderson, 966 F.2d 184, 187 (6th

Cir. 1992). None of those conditions is met in this case, and Cromer therefore was not entitled to

a specific unanimity instruction.

                                                 III.

        In a similar vein, Cromer argues that his indictment was duplicitous because it charged two

conspiracy offenses. Count 1 charged him with violating 21 U.S.C. § 846 by conspiring to 1)

possess with intent to distribute methamphetamine and 2) distribute methamphetamine. [R. 106

(Superceding Indictment) at 1.] Whether an indictment is duplicitous is a legal question that we

review de novo. United States v. Davis, 306 F.3d 398, 415 (6th Cir. 2002).

        “An indictment is duplicitous if it sets forth separate and distinct crimes in one count.” Id.

Generally, “‘offenses are separate if each requires proof of an additional fact that the other does

not.’” Id. at 416 (quoting 2 Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 142, at 17 (3d ed. 1999)). However, we have recognized a “distinction between means

and elements,” and “[i]t is not duplicitous to allege in one count that multiple means have been used

to commit a single offense.” United States v. Damrah, 412 F.3d 618, 622-23 (6th Cir. 2005). In

conspiracy charges, “the allegation, in a single count of conspiracy, of an agreement to commit

several crimes is not duplicitous, as conspiracy is itself the crime.” United States v. Dale, 178 F.3d

429, 431 (6th Cir. 1999).




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No. 09-5853, United States v. Cromer


        Count 1 of Cromer’s indictment is not duplicitous. It charged him with a single crime:

conspiracy. The fact that it alleged different objects of the conspiracy—possession with intent to

distribute, and distribution—does not render it duplicitous. Cf. United States v. Woods, 187 F.

App’x 524, 528 (6th Cir. 2006) (holding that indictment charging conspiracy to possess with intent

to distribute and to distribute drugs was not duplicitous because “it charge[d] [the defendants] with

a single conspiracy”); Dale, 178 F.3d at 431-32 (holding that an indictment charging conspiracy to

distribute two types of drugs was not duplicitous).

                                                 IV.

        Cromer’s next argument relates to statements that he made to federal agents at the DEA’s

office when he attempted to reclaim his Duster. The district court denied his motion to suppress

those statements. On appeal, Cromer argues that his statements were tainted fruit because the police

unconstitutionally seized his car in an effort “to lure him into coming into the DEA[’s] office.” He

claims that the police misconduct “overbore [his] will,” making the statements coerced and

involuntary. Id.

        When reviewing the denial of a motion to suppress, we review the district court’s legal

conclusions de novo and its factual findings for clear error. United States v. Navarro-Camacho, 186

F.3d 701, 705 (6th Cir. 1999). “A factual finding will only be clearly erroneous when, although there

may be 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.” Id. We view the evidence produced at the

suppression hearing “in the light most likely to support the district court’s decision.” Id. (internal

quotation marks omitted).

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No. 09-5853, United States v. Cromer


        As an initial matter, we agree with the district court’s conclusion that Cromer’s statements

were voluntary. Voluntariness is a threshold for the admission of any confession, Brown v. Illinois,

422 U.S. 590, 604 (1975), and is determined by examining “the totality of the circumstances,”

United States v. Rutherford, 555 F.3d 190, 195 (6th Cir. 2009). Here, Cromer initiated the visit to

the DEA’s office, voluntarily waited to speak to the agents, and freely answered their questions

despite being told that he was free to leave. There is no evidence that the officers behaved in an

objectively coercive way or that Cromer’s will was overborne.

        Nor do we find any merit in Cromer’s argument that his statements should have been

suppressed because they are “fruits” of the unconstitutional seizure of his Duster. Assuming, without

deciding, that the district court correctly concluded that the seizure of the Duster was

unconstitutional, Cromer’s argument nevertheless fails because the connection between the

statements and the illegal seizure was sufficiently attenuated to dissipate any taint.

        Evidence obtained as a result of a Fourth Amendment violation is generally inadmissible as

fruit of the poisonous tree. See New York v. Harris, 495 U.S. 14, 18-19 (1990). However, it may

be admissible if it “has been come at . . . by means sufficiently distinguishable [from the initial

illegal search or seizure] to be purged of the primary taint.” Wong Sun v. United States, 371 U.S.

471, 488 (1963) (internal quotation marks omitted). Among the factors that we consider to

determine whether the taint has dissipated are “the temporal proximity of the illegal conduct to the

statements, the presence of any intervening circumstances, and . . . the purpose and flagrancy of the

police misconduct.” United States v. Shaw, 464 F.3d 615, 626-27 (6th Cir. 2006) (internal quotation

marks omitted).

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No. 09-5853, United States v. Cromer


        Cromer’s statements at the DEA’s office were sufficiently removed from the seizure of his

Duster to dissipate any taint. The Duster was seized on November 17, 2006, and Cromer did not

show up at the DEA’s office until December 4, 2006, more than two weeks later. Cromer went to

the DEA’s office freely and of his own volition; no agents coerced him into going there. Cf.

Wilkerson v. United States, 432 A.2d 730, 732 (D.C. 1981) (“Certainly [the defendant] was not

coerced into going to the police station merely because the police held [his] [illegally] seized

property.”). Further, during the time period between the seizure and Cromer’s statements, the

charges against Cromer in Georgia were dismissed, such that he was not facing any criminal charges

at the time he spoke to the DEA agents. Finally, there was no evidence that the agents seized the

Duster in bad faith, or that they did so in order to “lure” Cromer to their office; in fact, the agents

had no reason to expect that Cromer would come to their office at all, as they believed that he

remained in custody in Georgia.

        Accordingly, the district court did not err when it denied Cromer’s motion to suppress.

                                                  V.

        Cromer next argues that the district court erred in denying his request for a mitigating role

adjustment pursuant to U.S.S.G. § 3B1.2, which provides that a defendant may receive a four-level

reduction for being a minimal participant in the offense, or a two-level reduction for being a minor

participant. “A minimal participant is one who is ‘plainly among the least culpable of those involved

in the conduct of a group,’ and a minor participant is one who ‘is less culpable than most other

participants, but whose role could not be described as minimal.’” United States v. Bartholomew, 310

F.3d 912, 924 (6th Cir. 2002) (quoting U.S.S.G. § 3B1.2, cmt. nn.1, 3 (1998)).

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No. 09-5853, United States v. Cromer


        “When reviewing the district court’s application of the Sentencing Guidelines, we review the

district court’s factual findings for clear error and mixed questions of law and fact de novo.” United

States v. Bridgewater, 606 F.3d 258, 260 (6th Cir. 2010) (internal quotation marks omitted).

“[W]hether a defendant is entitled to a sentence reduction pursuant to U.S.S.G. § 3B1.2 depends

heavily on factual determinations . . . .” United States v. Groenendal, 557 F.3d 419, 423 (6th Cir.

2009) (internal quotation marks omitted). “The defendant has the burden of proving by the

preponderance of the evidence that he is entitled to the reduction.” United States v. Bailey, 488 F.3d

363, 369 (6th Cir. 2007).

        The district court did not err in denying Cromer’s request for a mitigating role adjustment.

Cromer willingly drove Watkins to Georgia. He knew that Watkins distributed methamphetamine,

and he admitted that he suspected that Watkins was traveling to Georgia to purchase

methamphetamine. By driving Watkins (whose eyesight was too poor to drive himself) to Georgia,

Cromer “knowingly contributed a vital service to the distribution cartel.” See United States v.

Saucedo, 226 F.3d 782, 788 (6th Cir. 2000) (upholding district court’s denial of mitigating role

adjustment for defendant who was paid to transport 4 kilograms of cocaine). Further, the evidence

regarding Cromer’s methamphetamine activities supports the district court’s conclusion that he was

involved in the drug scheme as a distributor, as well as a purchaser. The district court’s finding that

Cromer was not a minor or minimal participant is not clearly erroneous.

                                                 VI.

        Finally, Cromer argues that his within-Guidelines-range sentence of 169 months is

substantively unreasonable. We review sentences for substantive reasonableness under a deferential

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No. 09-5853, United States v. Cromer


abuse-of-discretion standard. United States v. Alexander, 543 F.3d 819, 821-22 (6th Cir. 2008).

“[A] sentence may be substantively unreasonable when the district court selects the sentence

arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent [18 U.S.C.] §

3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.” United States

v. Brown, 557 F.3d 297, 299 (6th Cir. 2009) (internal quotation marks omitted). We presume that

a sentence within the Guidelines range is reasonable. United States v. Vonner, 516 F.3d 382, 389

(6th Cir. 2008) (en banc).

        Cromer makes several arguments that his sentence is substantively unreasonable, but none

is persuasive. A review of the transcript reveals that the district court thoughtfully considered

Cromer’s lack of criminal history, age (47 years), and medical condition. And Cromer’s complaint

about the disparity between his sentence and the shorter sentences received by McFerron and

Watkins misses the mark. Cromer fails to acknowledge that those men accepted responsibility and

cooperated with the government, things that Cromer declined to do. These differences “result in

legitimate co-defendant disparities.” See United States v. Carson, 560 F.3d 566, 586 (6th Cir. 2009).

Moreover, “§ 3553(a)(6) is concerned with national disparities among the many defendants with

similar criminal backgrounds convicted of similar criminal conduct,” not with disparities among co-

defendants. See United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007).

        The district court considered the § 3553(a) factors and arrived at a sentence that it believed

was “sufficient, but not greater than necessary, to comply with the purposes of [§] 3553(a).” There

is no basis on which to conclude that the district court abused its discretion.




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No. 09-5853, United States v. Cromer


                                             VII.

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




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