                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0096n.06

                                           No. 13-4158

                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                              Feb 02, 2015
                                                                              DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                         )
                                                  )
        Plaintiff-Appellee,                       )         ON APPEAL FROM THE
                                                  )         UNITED STATES DISTRICT
v.                                                )         COURT FOR THE NORTHERN
                                                  )         DISTRICT OF OHIO
TREMAYNE COLLINS,                                 )
                                                  )
                                                                     OPINION
        Defendant-Appellant.                      )
                                                  )


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

       KAREN NELSON MOORE, Circuit Judge.                    Tremayne Collins pleaded guilty to

conspiring to distribute and to possess with intent to distribute less than 100 grams of heroin in

violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(C), and 21 U.S.C. § 846. The district

court determined Collins’s Guidelines range to be between 70 and 87 months, pursuant to a total

offense level of 21 and a criminal history category of V. Collins received a 70-month sentence.

On appeal, Collins contends that the district court erred in calculating his criminal history score.

For the reasons stated below, we AFFIRM Collins’s sentence.

                                            I. BACKGROUND

       Tremayne Collins participated in a heroin distribution conspiracy lasting from March

2009 through March 2012.        On June 27, 2012, a federal grand jury returned a 19-count

indictment against Collins and eleven codefendants, with Collins named in counts 1 (for

violating 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(A), and 21 U.S.C. § 846), 13 (for
No. 13-4158
United States v. Collins


violating 21 U.S.C. § 843(b) and 21 U.S.C. § 846), and 16 (for violating 21 U.S.C. § 843(b) and

21 U.S.C. § 846). On June 3, 2013, Collins agreed to plead guilty to count 1, in exchange for the

government’s dismissing all other charges against him.

        At sentencing, Collins objected to the criminal history calculation in his Presentence

Report (“PSR”), which recommended that he receive a criminal history score of 11.1 Collins

took issue specifically with the criminal history points that he received for possession of heroin

and possession of dangerous drugs in violation of state law on October 1, 2010, and for

possession of heroin in violation of state law on October 29, 2011. See R. 381 (Sentencing Hr’g

Tr. at 11–13) (Page ID #2651–53); R. 244 (PSR at ¶ 62–63) (Page ID #1226–27). According to

Collins, these two “offenses were [part of] a common course of conduct with his instant case of

conspiracy to distribute heroin.” Appellant Br. at 14. Thus, under Collins’s view, they should

have been grouped together as relevant conduct to the instant offense, rather than counted

separately in calculating his criminal history.

        In response, the government contended that these possession offenses “were isolated

arrests,” and that “[t]here was no direct evidence tying them to the conspiracy.”           R. 381


        1
         Collins’s “criminal convictions . . . produce[d] a subtotal criminal history score of 10.”
R. 244 (PSR ¶ 66) (Page ID #1227). “However, convictions scored pursuant to U.S.S.G.
§ 4A1.1(c) are limited to 4,” and there were five such convictions here, resulting in Collins’s
receiving a subtotal criminal history score of 9. Id. Because Collins was on supervised release
when he committed the instant conspiracy, two additional criminal history points were added.
Collins does not dispute nine of these points—attempted possession of crack cocaine in violation
of state law; driving under the influence in violation of state law; trafficking in heroin in
violation of state law; conspiracy to possess with intent to distribute and distribution of at least
100 grams of heroin and 164 grams of ecstasy in violation of federal law; and the enhancement
for committing the instant offense while on supervised release.

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United States v. Collins


(Sentencing Hr’g Tr. at 15) (Page ID #2655). In addition, in an addendum to Collins’s PSR, the

government verified that these heroin amounts were not included in calculating Collins’s base

offense level, which held Collins responsible for conspiring to distribute and to possess with

intent to distribute 80–100 grams of heroin.

        After hearing from both sides, the district court stated that it could not “simply say well,

anything that happened [during the conspiracy] that was drug related, that it[,] if it was heroin, is

part of the conspiracy.” R. 381 (Sentencing Hr’g Tr. at 18) (Page ID #2658). “It could be—it

might be, but I—there’s not enough for me to make that determination.” Id. at 19 (Page ID

#2659). The district court overruled Collins’s objection, and adopted the PSR’s recommendation

in full. Id. at 19, 21 (Page ID #2659, 2661). Before imposing Collins’s sentence, the district

court provided Collins with a final opportunity to object, pursuant to our rule in United States v.

Bostic, 371 F.3d 865, 873 (6th Cir. 2004). R. 381 (Sentencing Hr’g Tr. at 43–44) (Page ID

#2683–84). Collins asserted a “continuing objection” regarding “the Court’s determination on

[his] criminal history.” Id. at 44 (Page ID #2684).

        On appeal, Collins contends that the district court erred in denying his objection to these

two criminal history points. In addition, he claims that he should not have received a criminal

history point for his January 19, 2000, arrest for minor misdemeanor possession of marijuana.

Collins did not raise this latter claim at his sentencing hearing or in his sentencing memorandum.




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                                             II. DISCUSSION

A. Standard of Review

        We review sentences for procedural and substantive reasonableness. Gall v. United

States, 552 U.S. 38, 51 (2007). First, we must “ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.”    Id.   If no procedural error occurred, we must then “consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. Sentences

within the applicable Guidelines range are presumptively substantively reasonable.          United

States v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011).

        With respect to the issues in this case, “[w]e accept factual findings made by the district

court at sentencing unless they are clearly erroneous. Because the district court’s determination

of ‘relevant conduct’ under the Sentencing Guidelines involves the application of law to fact, we

review the district court’s determination de novo.” United States v. Phillips, 516 F.3d 479, 483

(6th Cir. 2008) (citation omitted). In addition, as we noted in Bostic, “[i]f a party does not

clearly articulate any objection and the grounds upon which the objection is based, when given

this final opportunity [to] speak, then that party will have forfeited its opportunity to make any

objections not previously raised and thus will face plain error review on appeal.” 371 F.3d at

872–73; see also United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (applying

Bostic only to procedural reasonableness claims).

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B. Marijuana Possession

        We consider first Collins’s argument that he should not have received a criminal history

point for his prior conviction for minor misdemeanor possession of marijuana. As Collins points

out, “[a]rrest or conviction for [this] minor misdemeanor violation . . . does not constitute a

criminal record” under Ohio law.        Appellant Br. at 17 (quoting Ohio Rev. Code Ann.

§ 2925.11(D)). Thus, he argues that his conviction should fall under one of the exceptions listed

in U.S.S.G. § 4A1.2(c), rather than be considered part of his criminal history. He specifically

analogizes his conviction to a minor traffic infraction, see U.S.S.G. § 4A1.2(c)(2), or, in the

alternative, to disorderly conduct, see U.S.S.G. § 4A1.2(c)(1).

        Because Collins did not raise this specific objection below, we review it for plain error.

See Bostic, 371 F.3d at 872–73. To demonstrate plain error, Collins must show “(1) error (2)

that was obvious or clear, (3) that affected [his] substantial rights and (4) that affected the

fairness, integrity, or public reputation of the judicial proceedings.” Vonner, 516 F.3d at 386

(internal quotation marks omitted).

        Collins has failed to satisfy these requirements. The Commentary to U.S.S.G. § 4A1.2(c)

advises us to adopt a “common sense approach” in determining whether an offense should be

considered a minor traffic infraction or a form of disorderly conduct. U.S.S.G. § 4A1.2 cmt.

n.12(A). That approach “includes consideration of [a number of] relevant factors,” including:

        (i)   a comparison of punishments imposed for the listed and unlisted offenses;
        (ii)  the perceived seriousness of the offense as indicated by the level of
              punishment;
        (iii) the elements of the offense;
        (iv) the level of culpability involved; and

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United States v. Collins


        (v)   the degree to which the commission of the offense indicates a likelihood of
              recurring criminal conduct.

Id. In United States v. Stubblefield, 265 F.3d 345, 346 (6th Cir. 2001), “Stubblefield filed an

objection to the probation officer’s decision to assign a criminal history point to his minor

misdemeanor drug abuse conviction”—a conviction, as in this case, for “possession of less than

one hundred grams of marijuana.” We considered and rejected Stubblefield’s argument that his

conviction fell under the purview of U.S.S.G. § 4A1.2(c). Id. at 347 (“[T]he exceptions set forth

in § 4A1.2(c) do not apply.”). However, we decided Stubblefield without referring to the five

factors listed above.

        To be sure, some of these factors—a comparison of the punishments imposed (factor i)

and the perceived seriousness of the offenses as indicated by their level of punishment (factor

ii)—do weigh in Collins’s favor. As Collins notes, minor misdemeanor possession of marijuana

(like a minor traffic infraction) is not recorded on one’s criminal record in Ohio. On recidivism

(factor v), we acknowledge that “[t]he Sentencing Commission has determined that convictions

for crimes involving illegal narcotics correlate strongly to recidivism.” United States v. Foote,

705 F.3d 305, 308 (8th Cir. 2013) (internal quotation marks omitted) (citing U.S. Sentencing

Comm’n, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing

Guidelines, 13, 29–30 (2004)). But we have no data on whether the recidivism rate for minor

traffic infractions (such as speeding) is any lower than the recidivism rate for minor

misdemeanor possession of marijuana—indeed, common experience would likely suggest that it

is probably just as high. Yet we think that these offenses contain different elements (factor iii)


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and carry different levels of culpability (factor iv). Ohio’s drug possession law, for instance,

contains an explicit mens rea element—that “[n]o person shall knowingly obtain, possess, or use

a controlled substance”—while “[m]ost traffic violations,” on the other hand, “are strict liability

crimes.” Ohio Rev. Code § 2925.11(A); State v. Campbell, 691 N.E. 2d 711, 714 (Ohio Ct. App.

1997), abrogated on other grounds by State v. Weitbrecht, 715 N.E. 2d 167 (Ohio 1999).

Offenses which have a mens rea element typically carry with them a higher level of culpability

than those that do not. See also Foote, 705 F.3d at 307–08 (rejecting argument that possession of

marijuana be treated as a minor traffic infraction under § 4A1.2).

        In light of this discussion, we believe that the district court did not plainly err in awarding

a criminal history point for Collins’s prior conviction for marijuana possession. We are mindful

that at least one court has found that the district court did not commit plain error when it failed to

award a criminal history point for defendant’s prior marijuana possession conviction. United

States v. Ventura, 428 F. App’x 390, 392 (5th Cir. 2011). But under plain-error review, Collins

must demonstrate that the district court committed an “obvious or clear” error. Collins has not

done so here. Collins’s second contention—that we treat his marijuana possession as a form of

disorderly conduct—is of a piece. Consistent with the reasoning above, we hold that the district

court did not plainly err in rejecting this argument. See also United States v. Ruacho, 746 F.3d

850, 854–55 (8th Cir. 2014) (applying five-factor test to same argument and rejecting claim).

C. Heroin Possession

        Collins also alleges that his convictions for heroin possession in 2010 and 2011 should be

considered relevant conduct to the instant offense. We begin with his 2011 arrest. According to

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the Youngstown police report, officers pulled over the car that Collins was riding in for having

tinted windows. Police officers approached the vehicle and observed Collins sitting in the

passenger seat with “a personal use amount of heroin near his lap.” R. 244 (PSR at ¶ 63) (Page

ID #1227).

        These facts are consistent with the government’s contention that Collins was possessing

heroin outside of his involvement in the instant heroin conspiracy—i.e., that he was possessing it

for personal use. This conclusion is also supported by the indictment and plea agreement, which

provide multiple instances where Collins sold heroin to a cooperating source. See R. 249 (Plea

Agreement at ¶ 19) (Page ID #1280–81). Tellingly, none of these sales occurred in October

2011—none, in fact, occurred after June 8, 2011. Id. We also note that the district court offered

Collins an opportunity to provide evidence on this matter at sentencing. Collins might have, at

this time, offered an explanation of from whom he had bought the heroin and to whom he was

planning to sell it. He declined.

        The facts here mirror those in United States v. Escobar, 992 F.2d 87 (6th Cir. 1993). In

that case, Escobar claimed that “the district court committed error by including two prior State of

Ohio sentences for cocaine possession in the computation of his criminal history score, because

the conduct which formed the basis for the Ohio sentences was part of the continuing criminal

enterprise on which his federal sentence [was] based.” Id. at 87–88. We rejected this argument.

Although Escobar’s drug possession offenses did occur while he was also involved in a drug

distribution conspiracy, “Escobar’s possession of cocaine on [a particular date] is simply not

charged in the federal indictment, and the commission of this act need not have been proven as

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United States v. Collins


an element of any of the offenses therein to which he pled guilty.” Id. at 89. Both of Escobar’s

state convictions involved a small amount of cocaine, with one count charging him with

possession of 0.58 grams of cocaine found on his person and rolled up in a dollar bill—facts

indicative of cocaine intended for personal use. Id. at 88. In federal court, however, Escobar

was convicted of conspiring to distribute and to possess with intent to distribute cocaine; one of

the overt acts charged in his indictment involved his attempting to board a plane with

approximately 2.5 kilograms of cocaine and $66,000 in cash. Id.

        Like Escobar, Collins was convicted in federal court for attempting to distribute a large

amount of contraband, whereas he was convicted in state court for possession of a small amount

of contraband likely intended for personal use. As in Escobar, we reject Collins’s unsupported

assertion that this arrest for possession constituted relevant conduct to the instant offense. Id. at

90 (“We [could] think of no justification for concluding that any possession by Escobar during

the three-year time span of the criminal enterprise must automatically be considered as having

been committed by him as part of or in furtherance of his criminal enterprise.”). The district

court properly overruled Collins’s objection.

        Our decision on the 2011 arrest makes it unnecessary for us to review the district court’s

decision regarding Collins’s 2010 arrest for heroin possession.            Under the Guidelines,

convictions scored pursuant to U.S.S.G. § 4A1.1(c) are capped at four. Collins had five such

convictions here, including the three at issue in this appeal. We have already determined that the

district court did not plainly err in awarding Collins a criminal history point for marijuana

possession in 2000 and did not err in awarding him a criminal history point for heroin possession

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United States v. Collins


in 2011. Thus, Collins’s criminal history score still would have been 11, regardless of the

district court’s treatment of his 2010 arrest. Any error by the district court here would have

therefore been harmless.

        After determining Collins’s criminal history score and his total offense level, the district

court properly set forth its rationale for Collins’s sentence. We hold that Collins’s sentence was

neither procedurally nor substantively unreasonable.

                                       III. CONCLUSION

        Accordingly, we AFFIRM Collins’s sentence.




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