                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0360n.06

                                        Case No. 19-1541

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                   Jun 18, 2020
UNITED STATES OF AMERICA,                              )                       DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )        ON APPEAL FROM THE
v.                                                     )        UNITED STATES DISTRICT
                                                       )        COURT FOR THE WESTERN
ERNESTO McKINNEY,                                      )        DISTRICT OF MICHIGAN
                                                       )
       Defendant-Appellant.                            )
                                                       )                            OPINION


BEFORE: COLE, Chief Judge; McKEAGUE and KETHLEDGE, Circuit Judges.

       McKEAGUE, Circuit Judge. A jury convicted Ernesto McKinney of four federal charges

related to cocaine trafficking and possessing a firearm. On appeal McKinney argues that the

district court should have granted his motion to acquit on one of the counts, that the testimony of

one of the witnesses violated the Federal Rules of Evidence, and that his sentence was procedurally

and substantively unreasonable. We find his arguments unpersuasive and AFFIRM.

                                                 I

       In August of 2017 Ernesto McKinney was on supervised release when several of his

required drug tests came back positive for cocaine use. This led to his being detained for violating

the conditions of his supervised release. Meanwhile, McKinney had been on Detective Martin

Albert’s radar since June when a confidential informant had “identified McKinney as a high level
Case No. 19-1541, United States v. McKinney


cocaine source for the Grand Rapids, MI area.” And so, when Det. Albert was alerted to

McKinney’s arrest, he began to monitor McKinney’s telephone calls from jail.

       Over a few days, Det. Albert listened to phone calls between McKinney and Amber Harris,

McKinney’s girlfriend at the time.        In the calls, McKinney and Harris discussed certain

unidentified “things” in McKinney’s apartment and car. He told her to get in contact with two

known drug dealers and give them “something in return for money.” He asked if she got “that

thing out from under the hood” of his car. And in one of the later calls, Harris confirmed that “she

had removed everything of value” from McKinney’s apartment and placed it in a black bag under

her bed. She repeatedly emphasized that she got everything of value. McKinney told her to not

tell anyone where she had gotten “those things.”

       Based on the unusually guarded language employed by McKinney and Harris, Det. Albert

believed that they were discussing guns and drugs, albeit without using the word “guns” or

“drugs.” So Det. Albert got a warrant to search Harris’s home. There the police found a black

bag under Harris’s mattress. The bag contained two loaded handguns, a package with one

kilogram of cocaine, and two smaller bags of cocaine, along with a cellphone, a pair of headphones

and two belts. While the officers were still at the house, Harris returned. She told Det. Albert that

the black bag and its contents belonged to McKinney. She explained that she had retrieved the

guns and drugs from under the dishwasher in his apartment.

       At that point Det. Jason Russo joined Det. Albert at the jail to interview McKinney. After

being Mirandized, and briefly insisting that he wouldn’t cooperate unless the police released him

from custody, McKinney admitted that the drugs and guns found under Harris’s mattress were his.

Specifically, he said that the smaller two bags of cocaine were his to sell free and clear and that he

owed someone around $20,000–30,000 for the larger one-kilogram bag of cocaine. The officers



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took this to mean that McKinney had the larger bag of cocaine on credit; once he sold the cocaine

he would pay the $20,000–30,000 to his supplier. Additionally, McKinney admitted that one of

the guns was his and that he was temporarily holding onto the other one for a friend.

       With this evidence in hand, the government indicted McKinney on four counts:

(1) conspiracy to distribute over 500 grams of cocaine, under 21 U.S.C. §§ 846 and 841(a)(1),

(b)(1)(B)(ii); (2) possession with intent to distribute over 500 grams of cocaine under 21 U.S.C.

§ 841(a)(1), (b)(1)(B)(ii), and 18 U.S.C. § 2; (3) possession of a firearm in furtherance of a drug

trafficking crime, under 18 U.S.C. § 924(c)(1)(A)(i) and 21 U.S.C. § 841(a)(1); and (4) possession

of a firearm by a convicted felon, under 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

       At trial, the government presented testimony from three witnesses: Det. Albert, Harris, and

Det. Russo. Det. Albert testified as to the events leading up the search. He explained what he

overheard in McKinney’s phone calls with Harris, explained what the officers found in the search,

and detailed McKinney’s admissions in the conversation they had at the jail. Det. Albert also

explained that in his experience, one kilogram of cocaine was a dealer’s quantity, not a personal

user’s quantity, and that guns and drugs frequently went together.

       Harris testified about how the drugs and guns ended up under her mattress. She explained

that as McKinney’s girlfriend, she knew McKinney sold cocaine to support himself, that she had

accompanied him on a few drug sales, and that she had seen him with one of the guns. She also

said she believed that he generally carried a gun with him when he sold cocaine. Harris testified

that the day before McKinney was arrested she’d seen him fiddling around under the dishwasher—

a spot that was easily accessible from anywhere in McKinney’s small apartment within 10 seconds.

So when McKinney told her during one of his coded phone calls from jail to “[g]et that”—which

she understood as an instruction to remove McKinney’s drugs and valuables from his apartment—



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Harris checked under the dishwasher. There she found two guns and a package that she suspected

contained cocaine. She put the items in a black bag that she found and brought the bag to her

house where she hid it under her mattress. When she called McKinney to tell him that she had a

black bag with his things, he told her to hold onto it and not give it to anyone.

       Last, Det. Russo testified that he accompanied Det. Albert to interview McKinney at the

jail. He corroborated Det. Albert’s testimony that McKinney admitted the drugs and guns were in

his possession.

       The defense presented no witnesses but moved to acquit on all charges, arguing that the

government’s evidence was insufficient. The judge denied the motion, and the jury convicted

McKinney of all four counts.

       McKinney proceeded to sentencing. He was subject to a ten-year mandatory minimum for

counts one and two, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), and a five-year mandatory minimum on

count three that had to be served consecutively to any other term, 18 U.S.C. § 924(c)(1)(A)(i).

And so, in practice, McKinney faced a mandatory total sentence of 15 years, or 180 months. The

government moved for a downward departure of 33 months for substantial assistance under

U.S.S.G. § 5K1.1. The defense argued for a further reduced sentence because the government’s

motion understated the amount of assistance by McKinney and because McKinney’s cooperation

impacted him significantly. McKinney was ostracized by most of his friends and family and he

faced physical threats while in prison. Further, the defense argued for a lower sentence based on

McKinney’s life circumstances; his mother was undergoing treatment for cancer, he had a 20-year-

old son with whom he needed to build a relationship, and he promised to make changes in his life,

starting with moving out of the state of Michigan. The court sentenced McKinney to 135 months,

departing 45 months downward from McKinney’s mandatory minimum.



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Case No. 19-1541, United States v. McKinney


       On appeal, McKinney makes three main arguments. First, he argues that there was

insufficient evidence to support his conviction for possessing a gun in furtherance of a drug crime

and therefore the district court should have granted his motion for judgment of acquittal on that

charge. Second, he argues that Det. Albert’s testimony violated several evidentiary rules: Det.

Albert gave expert testimony without being qualified as an expert, he testified about the content of

a recording without the recording being introduced in violation of the best evidence rule, he opined

on ultimate issues reserved for the jury, and he gave opinions without the proper foundation. Third,

McKinney argues that his sentence was procedurally and substantively unreasonable. Because we

find McKinney’s arguments unpersuasive, we affirm his convictions and his sentence.

                                                 II

   A. Sufficiency of the evidence

       McKinney first challenges the district court’s denial of his judgment of acquittal and argues

that the evidence at trial was insufficient to prove that he possessed a firearm in furtherance of a

drug trafficking crime under § 924(c). We review insufficiency-of-the-evidence claims de novo

and ask “whether, after viewing the evidence in a light most favorable to the government, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Jenkins, 593 F.3d 480, 483 (6th Cir. 2010) (quoting United States v.

Gardner, 488 F.3d 700, 710 (6th Cir. 2007)); United States v. Humphrey, 279 F.3d 372, 378 (6th

Cir. 2002).

       McKinney correctly notes that it is not enough that there was a gun “on the same premises

as a drug transaction.” United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001). There must

be evidence of a “specific nexus between the gun and the crime charged.” Id. This is because “the

firearm’s presence in the vicinity of the crime [must be] something more than mere chance or



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coincidence.” United States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004). In order to support a

conviction under § 924(c), the weapon must “advance, promote, or facilitate the crime.” United

States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

       But in making his argument, McKinney incorrectly relies on the fact that he was “never

seen conducting a drug transaction with a firearm.” A defendant doesn’t have to be observed

holding a firearm while committing a drug crime in order to be convicted under § 924(c). See

United States v. Steele, 919 F.3d 965, 970 (6th Cir. 2019) (“The jury could have convicted Steele

based on the testimony that he stored guns in the house to protect his drug stash.”); United States

v. Lengen, 245 F. App’x 426, 435–36 (6th Cir. 2007) (“Contrary to the defendant's belief, however,

that nexus does not require actual possession of the firearm while holding the prohibited controlled

substances.” (emphasis omitted)). The government can use circumstantial evidence to prove that

a defendant’s firearm facilitated his drug trafficking crime, just like it can use circumstantial

evidence to prove the elements of any other crime. United States v. Manjate, 327 F. App’x 562,

567 (6th Cir. 2009). “[A] jury can reasonably infer that firearms which are strategically located

so as ‘to provide defense or deterrence in furtherance of the drug trafficking’ are used in

furtherance of a drug trafficking crime.” United States v. Couch, 367 F.3d 557, 561 (6th Cir. 2004)

(quoting Mackey, 265 F.3d at 462–63). “Other factors to consider include: (1) ‘whether the gun

was loaded,’ (2) ‘the type of weapon,’ (3) ‘the legality of its possession,’ (4) ‘the type of drug

activity conducted,’ and (5) ‘the time and circumstances under which the firearm was found.’”

United States v. Ham, 628 F.3d 801, 808–09 (6th Cir. 2011) (quoting Mackey, 265 F.3d at 462).

These factors are collectively called the Mackey factors.

       In this case, the government presented persuasive evidence at trial that the guns were

strategically located to facilitate McKinney’s drug trafficking crimes. The guns were hidden with



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Case No. 19-1541, United States v. McKinney


his cocaine under the dishwasher, so it would be easy to access the drugs and guns simultaneously

and the guns could be used to protect his drug supply. United States v. Volkman, 797 F.3d 377,

391–92 (6th Cir. 2015); United States v. Mendizabal, 214 F. App’x 496, 501 (6th Cir. 2006). The

hiding spot under the dishwasher was also easy to access from anywhere in McKinney’s apartment,

accessible within 10 seconds according to Harris’s testimony. United States v. Brown, 732 F.3d

569, 576–77 (6th Cir. 2013) (finding that a jury could reasonably infer that guns were strategically

located because someone could retrieve the gun from anywhere in the house within 10–15

seconds). And the hiding spot was very unusual, as opposed to a generic storage space where a

gun might coincidentally be placed alongside drugs. Cf. United States v. Leary, 422 F. App’x 502,

510–11 (6th Cir. 2011) (finding no specific nexus between guns and a small quantity of drugs

found in a closet off the defendant’s bedroom).

       The other Mackey factors also support the jury’s finding that McKinney possessed firearms

in furtherance of a drug trafficking crime. The guns were loaded, so they were ready to use at a

moment’s notice. They were handguns, which are more likely to be used by drug dealers than

other types of guns, such as shotguns or rifles. United States v. Gill, 685 F.3d 606, 611 (6th Cir.

2012). Because McKinney was a convicted felon, possessing the guns was illegal. And most

importantly, there was a very large amount of cocaine under McKinney’s dishwasher, worth tens

of thousands of dollars, according to McKinney. Thus, it was the kind of stash that seems to

warrant a gun for protection. United States v. Shaffer, 781 F. App’x 404, 416 (6th Cir. 2019);

Leary, 422 F. App’x at 512. Last, Harris witnessed several of McKinney’s drug sales, and she

testified that she believed McKinney carried his gun with him for drug sales. Based on these facts

presented at trial, a reasonable factfinder could find McKinney guilty of possessing a firearm in

furtherance of a drug crime.



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Case No. 19-1541, United States v. McKinney


    B. Evidentiary errors

         McKinney challenges Det. Albert’s testimony on the bases of several rules of evidence.

He says Det. Albert gave expert testimony about the “coded” phone calls between Harris and

McKinney without the government qualifying Det. Albert as an expert. He says the court should

have instructed the jury on how to differentiate between Det. Albert’s dual roles as expert and fact

witness. And McKinney says the testimony about the phone calls also violated the best evidence

rule, because the government didn’t introduce the recordings of the calls into evidence. Last, he

says that Det. Albert opined on ultimate issues for the jury and repeatedly gave his opinion without

the government establishing a foundation.

         McKinney faces a preliminary problem: he didn’t raise these objections to this testimony

at trial.1 And so McKinney’s claims are reviewed for plain error. United States v. Kilpatrick, 798

F.3d 365, 378 (6th Cir. 2015). In order to constitute plain error, any mistake must have affected

McKinney’s substantial rights by prejudicing his case. United States v. Olano, 507 U.S. 725, 734

(1993). On plain error review it is McKinney’s burden to prove that the alleged errors were

prejudicial. Id. He hasn’t met that burden.

          Even if we put all of Det. Albert’s challenged testimony to the side, the remaining evidence

of McKinney’s guilt is overwhelming. The government didn’t need Det. Albert’s testimony about

McKinney’s conversations with Harris from jail, because Harris testified about the same

conversations. Just like Det. Albert, Harris explained that McKinney spoke to her in “coded”

language in those calls. And Harris interpreted the code in just the same way as Det. Albert; Harris




1
  There is one objection in common between the trial transcript and McKinney’s brief on appeal: that Det. Albert
testified to ultimate issues reserved for the jury when he answered yes to the question “Was it clear from your
conversation that [McKinney] admitted both actual and constructive possession of the cocaine?” But the trial court
sustained the defense’s objection on this point, and the defense didn’t argue either in the district court or in its brief
on appeal that the court addressed its objection inadequately.

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Case No. 19-1541, United States v. McKinney


understood McKinney to be requesting that she remove his drugs and guns from the apartment.

The government didn’t need Det. Albert’s testimony that one kilogram of cocaine was generally a

dealer’s quantity. According to both detectives, McKinney admitted he intended to sell the

cocaine. And Harris corroborated that testimony when she said that McKinney made a living

selling drugs. The government didn’t need Det. Albert to testify to the ultimate issue of whether

McKinney was engaged in a conspiracy, because according to the uncontradicted testimony of

both detectives, McKinney admitted to working with another person who’d given him cocaine to

sell on credit. Last, the government didn’t need Det. Albert’s testimony that guns and drugs

generally go together. Harris testified that she found the guns and drugs stored together under the

dishwasher in McKinney’s apartment, that she had seen McKinney handling one of the recovered

guns on several occasions, and that she believed McKinney carried his gun with him when he sold

drugs. There were multiple pieces of specific evidence that in this case, these guns and these drugs

went together.

       Because the unchallenged evidence of McKinney’s guilt was overwhelming, none of the

evidentiary mistakes alleged by McKinney plausibly prejudiced his case or substantially affected

his rights. At worst, any mistake was harmless error.

   C. Sentencing

       McKinney challenges his sentence as substantively and procedurally unreasonable. We

review the reasonableness of criminal convictions “under a deferential abuse-of-discretion

standard.” Gall v. United States, 552 U.S. 38, 41 (2007).

       There is a presumption that sentences that fall within the sentencing guidelines range are

substantively reasonable. United States v. Herrera-Zuniga, 571 F.3d 568, 582 (6th Cir. 2009).

There is an even stronger presumption that below-guidelines sentences are reasonable. United



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Case No. 19-1541, United States v. McKinney


States v. Fields, 763 F.3d 443, 455 (6th Cir. 2014). The strongest presumption of all regards

mandatory minimums. “When [a sentence] has been challenged as being too high, a mandatory

minimum sentence is by definition substantively reasonable.” United States v. Marshall, 736 F.3d

492, 501 (6th Cir. 2013). Because McKinney was subject to a mandatory minimum that exceeded

his guidelines range, his total guideline sentence and mandatory minimum became one and the

same: 180 months. U.S.S.G. § 5G1.1(b). After hearing the government’s motion for a downward

departure, the district court sentenced McKinney to a total of 135 months, far below his mandatory

minimum and guidelines sentence. And so McKinney bears an exceptionally heavy burden in

proving that his below-guidelines, below-statutory-minimum sentence was substantively

unreasonable.

       He has not met that burden. McKinney argues that his sentence didn’t adequately account

for how much he assisted the government, but we don’t second guess a district court’s

determination of how much to depart for substantial assistance. United States v. Perry, 743 F.

App’x 617, 619 (6th Cir. 2018); United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008). And

McKinney argues that the district court failed to sentence him as an individual and thus gave him

a sentence more severe than necessary to achieve the statutory goals of sentencing in § 3553(a).

But “[t]he whole point of mandatory minimums is to remove from judges the discretion to impose

low sentences on sympathetic defendants.” United States v. Flowers, 640 F. App’x 456, 460 (6th

Cir. 2016) (quoting Marshall, 736 F.3d at 501). Further, the district court lacked discretion to even

consider individualized factors like McKinney’s “age, . . . , history of drug abuse, and his need for

treatment” because those facts are unrelated to the defendant’s substantial assistance. United

States v. Williams, 687 F.3d 283, 286 (6th Cir. 2012); United States v. Bullard, 390 F.3d 413, 416

(6th Cir. 2004). McKinney’s argument also repeatedly references the sentencing guidelines range



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Case No. 19-1541, United States v. McKinney


that would have applied if he had pled guilty, blaming the government for refusing to promise to

move for a downward departure before his trial. The plain fact is McKinney didn’t plead guilty.

This argument does nothing to move the needle on McKinney’s substantive reasonableness claim.

       Last of all, McKinney argues that his sentence wasn’t procedurally reasonable because the

court didn’t explain why it rejected his arguments for a downward departure or variance. But

again, many of McKinney’s arguments for a lesser sentence were about factors the district court

couldn’t rightly consider in departing below the mandatory minimum. What’s more, McKinney

did not raise this procedural objection at his sentencing hearing. When asked whether he had any

objections to the sentence—the Bostic question—the defense said no. Thus, plain error applies.

United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc); United States v. Bostic,

371 F.3d 865, 872–73 (6th Cir. 2004). We are satisfied that there was no plain error here.

                                               IV

       For these reasons, we AFFIRM McKinney’s convictions and sentence.




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