                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0189n.06

                                           No. 13-4473

                          UNITED STATES COURT OF APPEALS
                                                                                        FILED
                                                                                  Mar 10, 2015
                               FOR THE SIXTH CIRCUIT
                                                                              DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )    ON APPEAL FROM THE UNITED
v.                                                     )    STATES DISTRICT COURT FOR
                                                       )    THE SOUTHERN DISTRICT OF
JACK A. MORRIS,                                        )    OHIO
                                                       )
       Defendant-Appellant.                            )
                                                       )
                                                       )


       BEFORE: SILER, BATCHELDER, and ROGERS, Circuit Judges.


       PER CURIAM. A jury convicted Jack A. Morris of several drug and firearm offenses.

Morris now appeals those convictions and his 528-month sentence. We affirm.

       After an investigation, which included five controlled buys, law enforcement executed a

search warrant at Morris’s house and recovered 36 grams of cocaine, 146 tablets containing

oxycodone, 790 tablets containing hydrocodone, 62 Adderall tablets, 2.45 kilograms of

marijuana, seven firearms, and $10,773 in cash. A federal grand jury returned an indictment

charging Morris and two co-defendants with conspiracy to distribute and to possess with intent to

distribute cocaine, oxycodone, and marijuana, in violation of 21 U.S.C. § 846, along with other

drug and firearm offenses. Morris proceeded to trial, during which his co-conspirators testified

against him. The jury acquitted Morris of some counts but convicted him of the conspiracy

count; nine counts of distribution of or possession with intent to distribute oxycodone, marijuana,
No. 13-4473
United States v. Morris

and/or cocaine, in violation of 21 U.S.C. § 841(a); and two counts of possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

       At sentencing, the district court attributed to Morris a drug quantity of 102.25 kilograms

of marijuana equivalent, resulting in a base offense level of 26. Morris’s total offense level of 34

and his criminal history category of I corresponded to a guidelines range of 151 to 188 months of

imprisonment. The district court sentenced Morris to 168 months of imprisonment for his drug

convictions after considering the sentencing factors under 18 U.S.C. § 3553(a) and, as required

by statute, imposed a consecutive 60-month term for his first § 924(c) conviction and a

consecutive 300-month term for his second § 924(c) conviction.

       On appeal, Morris asserts that the prosecutor improperly vouched for the credibility of

witnesses, that the district court improperly admitted hearsay testimony, and that, even if

harmless, the cumulative effect of these errors requires reversal of his convictions. With respect

to sentencing, Morris challenges the district court’s drug quantity determination, its failure to

consider the overall sentence, and its imposition of a twenty-five-year consecutive sentence for

his second § 924(c) conviction.

       Morris first contends that the prosecutor improperly vouched for the credibility of

witnesses. “Improper vouching occurs when a prosecutor supports the credibility of a witness by

indicating a personal belief in the witness’s credibility thereby placing the prestige of the office

of the United States Attorney behind that witness.” United States v. Francis, 170 F.3d 546, 550

(6th Cir. 1999).

       To the extent that Morris objects to the prosecutor’s references to the witnesses’

agreements to cooperate and testify truthfully, “[t]his court has held that it is not improper

vouching for the prosecutor to refer to the plea agreements of cooperating witnesses in the


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expectation that their credibility will be at issue.” United States v. Reid, 625 F.3d 977, 983 (6th

Cir. 2010). “Nor is it improper vouching to elicit testimony that the plea agreement contains a

promise to testify truthfully.” Id.

       “The potential for impropriety emerges, however, when a prosecutor explains that there is

to be a recommendation to the witness’s sentencing court whether the terms of the plea

agreement have been adhered to.” Francis, 170 F.3d at 550. “Because that recommendation is

dependent upon whether the witness testifies truthfully, it is easy for a prosecutor to imply, either

intentionally or inadvertently, that the prosecutor is in a special position to ascertain whether the

witness was, in fact, testifying truthfully.” Id. During opening statement, the prosecutor said:

       Now, myself and Mr. Dunbar, for some of these people—they’re codefendants
       with the defendant, who pled guilty in this very courtroom—we promised them, if
       they cooperate and they tell the truth, that we will request a reduction from Judge
       Frost in their sentence, their otherwise applicable sentence. They have not been
       sentenced yet. Once we make that motion, the Judge can or cannot follow it. It is
       up to him, the sentence.

(RE 163, 7/29/13 Trial Tr. 148, Page ID # 816). The prosecutor’s statement implies that his

request for a sentence reduction would depend on whether he believed the witness told the truth

and therefore constitutes improper vouching. See Francis, 170 F.3d at 551.

       In addition, the following exchange took place during the prosecutor’s redirect

examination of Zachary Writesel:

       Q.    And before you entered into the written agreement with the Franklin
       County Prosecutor’s Office for what amounts to immunity?

       A.     Yes, sir. I entered into the agreement with the Franklin County Prosecutor
       in December. . . .

       Q.      And we already established I told you that I would honor this agreement?

       A.      Yes, sir, and I believed you.

       Q.      Did I tell you what I would do if you lied?

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       A.     You told me that you would charge me with everything that, you know,
       you could that I had done.

(RE 164, 7/30/13 Trial Tr. 61, Page ID # 984). The prosecutor’s wording once again indicated

that he would “be the arbiter of truth.” United States v. Wells, 623 F.3d 332, 342 (6th Cir. 2010).

       In determining whether the impropriety of the prosecutor’s remarks was sufficiently

flagrant to warrant reversal, we take into account four factors: “(1) the degree to which the

conduct or remarks tended to mislead the jury or prejudice the defendant; (2) whether they were

isolated or extensive; (3) whether they were deliberately or accidentally put before the jury; and

(4) the overall strength of the evidence against the defendant.” Reid, 625 F.3d at 982. Morris

points to two improper remarks over a five-day trial. The remarks do not appear to have been

intended to prejudice Morris, but rather to accurately reflect the witnesses’ agreements. In the

case of Writesel’s redirect examination, the prosecutor’s question was in response to the

defense’s extensive cross-examination of Writesel challenging his credibility based in part on his

cooperation agreement. Finally, the evidence against Morris—which went beyond the testimony

of cooperating witnesses—was strong. The prosecutor’s remarks were not flagrant. See Wells,

623 F.3d at 344.

       Morris asserts that the district court improperly admitted hearsay testimony. Detective

Matthew Fulmer testified that he debriefed a confidential informant, Richard Souder, after a

controlled buy: “Mr. Souder indicated to me in passing at that point and I would later learn more

that night in a telephone conversation that he had recognized the house, and he believed the

house to be owned by a gentleman or resided in by a gentleman named ‘Jack.’” (RE 165,

7/31/13 Trial Tr. 26-27, Page ID # 1191-92). When defense counsel made a hearsay objection,

the government responded: “It’s a prior consistent statement. We’ve already heard this from a

witness that’s testified. It corroborates his statement.” (Id. at 27, Page ID # 1192). The district

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United States v. Morris

court overruled the objection. Any error in the district court’s admission of Detective Fulmer’s

testimony was harmless because it was uncontroverted that Morris owned or resided in the house

identified by Souder. See United States v. Trujillo, 376 F.3d 593, 611 (6th Cir. 2004) (holding

that, to warrant reversal, an “error must be shown not to have been harmless, i.e., that it was

more probable than not that the error materially affected the verdict”).

       Morris contends that cumulative error requires reversal of his convictions. Morris has

failed to demonstrate that “the combined effect of individually harmless errors was so prejudicial

as to render his trial fundamentally unfair.” Id. at 614.

       With respect to sentencing, Morris first challenges the district court’s drug quantity

determination. We review for clear error the district court’s factual findings regarding the drug

quantity attributable to a defendant. See United States v. Johnson, 732 F.3d 577, 581 (6th Cir.

2013). “Where the exact amount of drugs involved is unclear, a court may approximate the

quantity of drugs based on circumstantial evidence, making sure to ‘err on the side of caution.’”

United States v. Valentine, 694 F.3d 665, 672 (6th Cir. 2012) (quoting United States v.

Hernandez, 227 F.3d 686, 699 (6th Cir. 2000)). “A court’s approximation of the amount of

drugs involved in a particular case is not clearly erroneous if supported by competent evidence in

the record.” Id. at 672-73 (quoting United States v. Mahaffey, 53 F.3d 128, 132 (6th Cir. 1995)).

       In determining the drug quantity attributable to Morris, the district court included the

drugs recovered during the execution of the search warrant, the drugs involved in the controlled

buys, and the approximate amount of oxycodone pills sold by Morris to Writesel. Morris

contends that the district court should not have relied on Writesel’s testimony to determine drug

quantity because his testimony was unreliable. “Testimonial evidence from a coconspirator may

be sufficient to determine the amount of drugs for which another coconspirator should be held


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United States v. Morris

accountable.” Hernandez, 227 F.3d at 697. “The district court’s credibility determinations will

not be disturbed absent clear error.” Johnson, 732 F.3d at 582. Based on “those portions of

Writesel’s testimony that [are] specific enough,” the district court determined that Morris sold

Writesel 100 5-milligram oxycodone pills per week from May to September 2012. (RE 168,

Sentencing Tr. 38, Page ID # 1592). Giving Morris “the benefit of the doubt” and making “a

finding in a light most favorable to the defendant,” the district court included an “ultra-

conservative estimate” of 67 kilograms of marijuana equivalent in the total drug quantity. (Id. at

37, 39, Page ID # 1591, 1593). As the district court noted, there was testimony that Morris sold

drugs to persons other than Writesel, that at least some of the oxycodone pills were 30-milligram

pills, and that Morris’s activities extended into April and October 2012. There was no clear error

in the district court’s reliance on Writesel’s testimony or in its approximation of the amount of

oxycodone pills sold to him by Morris.

       Morris also argues that the district court erred in including in the drug quantity

determination drugs possessed for personal use. Drugs possessed for personal consumption

should not be included when the charge is possession with intent to distribute a controlled

substance. United States v. Gill, 348 F.3d 147, 153 (6th Cir. 2003). In a conspiracy case,

however, this court has held that the drugs obtained by a defendant from his supplier for his own

personal use should be included. United States v. Page, 232 F.3d 536, 542 (6th Cir. 2000).

Morris contends that this distinction between distribution and conspiracy cases does not hold up.

But Morris does not challenge the inclusion of drugs obtained for his own personal use. Morris

challenges the inclusion of drugs sold by him to Writesel for Writesel’s personal use—drugs

properly attributed to him in either a distribution or a conspiracy case.




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United States v. Morris

       Morris contends that the district court erred in failing to consider the overall sentence and

instead determining the sentence for his drug convictions separately from the mandatory

sentences for his § 924(c) convictions. This court has held that “[t]he sentencing court must

determine an appropriate sentence for the underlying crimes without consideration of the

§ 924(c) sentence.” United States v. Franklin, 499 F.3d 578, 586 (6th Cir. 2007). Morris

questions the continued validity of Franklin after Spears v. United States, 555 U.S. 261 (2009),

an argument that this court has rejected. See United States v. Franklin, 622 F.3d 650, 655-56

(6th Cir. 2010), vacated on other grounds, 131 S. Ct. 1675 (2011).

       Finally, Morris challenges the district court’s imposition of a twenty-five-year

consecutive sentence for his second § 924(c) conviction, asserting that the Supreme Court

wrongly decided Deal v. United States, 508 U.S. 129 (1993). As Morris concedes, we are bound

by the Supreme Court’s decision in Deal that “the twenty-five-year mandatory minimum for a

second or subsequent conviction attaches not only when a defendant is convicted of an offense

and is later convicted of another offense, but also when a defendant is convicted of multiple

offenses in the same proceeding.” United States v. Washington, 714 F.3d 962, 970 (6th Cir.)

(citing Deal, 508 U.S. at 135-36), cert. denied, 134 S. Ct. 336 (2013); see United States v.

Mongham, 356 F. App’x 831, 839 (6th Cir. 2009). Under that controlling Supreme Court

precedent, the district court properly sentenced Morris to the twenty-five-year mandatory

minimum for his second § 924(c) conviction.

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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