               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0313n.06

                                       Case No. 15-6114

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              Jun 07, 2017
UNITED STATES OF AMERICA,                           )                     DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )        ON APPEAL FROM THE
v.                                                  )        UNITED STATES DISTRICT
                                                    )        COURT FOR THE EASTERN
FAITH BLAKE, aka Faith Marvell Brueland, aka        )        DISTRICT OF TENNESSEE
Faith Fuentes, aka Faith Baker,                     )
                                                    )
       Defendant-Appellant.                         )
                                                    )


BEFORE:       COLE, Chief Judge, GIBBONS and ROGERS, Circuit Judges.

       COLE, Chief Judge.       Faith Blake appeals her sentence for conspiracy to distribute

controlled substances and failure to appear at her bond hearing, arguing that her 528-month

sentence was procedurally and substantively unreasonable. The district court correctly applied

the challenged enhancements and imposed a substantively reasonable sentence. We, therefore,

affirm Blake’s sentence.

                                     I. BACKGROUND

       Faith Blake owned Elite Care Pain Clinic (“Elite Care”), and she and her mother, Barbara

Lang, owned and operated Superior One Medical Clinic (“Superior One”), both in Chattanooga,

Tennessee. These clinics operated as “pill mills” that prescribed addictive pain medication to

clients who did not medically need it. A grand jury charged Blake, Lang, nurse practitioner
No. 15-6114, United States v. Blake


Charles Larmore, and pediatrician Jerome Sherard with conspiring to distribute controlled

substances, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(C), and with maintaining

premises for the purpose of distributing controlled substances, in violation of 21 U.S.C.

§ 856(a)(1).   A superseding indictment charged Blake with failure to appear for court

proceedings, in violation of 18 U.S.C. § 3146.

       On December 19, 2013, Blake pleaded guilty to two counts of conspiring to distribute

and disperse Schedule II, III, and IV controlled substances, in violation of 21 U.S.C. §§ 846,

841(a)(1), (b)(1)(C), and (b)(1)(E), failing to appear at her bond revocation hearing, in violation

of 18 U.S.C. §§ 3146(a)(1) and (b)(1)(A)(I), and obstructing and impeding the administration of

internal revenue laws, in violation of 26 U.S.C. § 7212(a). As part of her plea agreement, Blake

stipulated that “the majority of the prescriptions [issued at Superior One and Elite Care] were not

issued for a medical purpose.” (Plea Agreement, R. 158, PageID 546.) She also stipulated that,

after being indicted and released pending trial, she fled the jurisdiction, failed to appear in court

as scheduled, and was later apprehended in Maryland under an assumed name.

       On August 1, 2014, Blake moved to withdraw her guilty plea. After an evidentiary

hearing, the district court denied the motion.

       The Presentence Investigation Report (“PSR”) determined that Blake was responsible for

28 kilograms of oxycodone, which yielded a base offense level of 38. The PSR recommended

two-level enhancements for (1) possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1),

(2) maintaining the premises for the purpose of distributing controlled substances under U.S.S.G.

§ 2D1.1(b)(12), (3) committing the offense as part of a pattern of criminal conduct engaged in as

a livelihood under U.S.S.G. § 2D1.1(b)(15)(E), and (4) obstruction of justice under U.S.S.G.

§ 3C1.1.    The PSR also recommended a four-level leadership enhancement.                 After the



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enhancements, Blake’s combined adjusted offense level was 50.             Because the maximum

Guidelines offense level is 43, the PSR set Blake’s total offense level at 43. Blake’s effective

sentencing Guidelines range under U.S.S.G. § 5G1.2(d) was 600 months of imprisonment.

       Blake objected to each of the enhancements and requested a downward departure and

variance from the Guidelines range. At sentencing, the district court overruled all of Blake’s

objections but granted a downward variance because Blake’s offense level was largely driven by

the high drug quantity. The district court imposed a sentence of 528 months of imprisonment.

Blake timely appealed.

                                         II. ANALYSIS

       We review a criminal sentence for procedural and substantive unreasonableness under

“a deferential abuse of discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).

“An abuse of discretion occurs when the reviewing court is left with the definite and firm

conviction that the sentencing court committed a clear error of judgment.” United States v.

Coppenger, 775 F.3d 799, 802–03 (6th Cir. 2015).              A sentence may be procedurally

unreasonable if the district court failed to calculate or improperly calculated the Guidelines

range, treated the Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a) factors,

selected a sentence based on clearly erroneous facts, or failed to explain adequately the chosen

sentence. United States v. Adkins, 729 F.3d 559, 563 (6th Cir. 2013). A sentence may be

substantively unreasonable if the district court chose the sentence arbitrarily, based the sentence

on impermissible factors, or unreasonably weighed a pertinent factor. Id.

       A. Enhancement for Maintenance of Facility for the Purpose of Distributing
          Controlled Substances

       Under U.S.S.G. § 2D1.1(b)(12), a defendant who “maintain[s] a premises for the purpose

of manufacturing or distributing a controlled substance” is subject to a two-level enhancement.


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Blake argues that the enhancement cannot apply to her because no drugs were manufactured or

distributed at Superior One or Elite Care. This circuit “has not settled on the proper standard of

review for assessing such enhancements.” United States v. Bell, 766 F.3d 634, 636 (6th Cir.

2014) (comparing United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th Cir. 2002)

(reviewing for clear error) with United States v. Sweet, 630 F.3d 477, 480 (6th Cir. 2011)

(reviewing de novo)). Here, we need not decide the standard of review because the issuance of a

prescription qualifies as distribution under either standard.

       “Because the [U.S. Sentencing] Commission adopted language nearly identical to the

pre-existing drug house statute to describe the enhancement, it is fair to assume that it meant to

incorporate prior interpretations of the statute.” United States v. Johnson, 737 F.3d 444, 447 (6th

Cir. 2013) (internal citations omitted) (comparing U.S.S.G. § 2D1.1(b)(12) with 21 U.S.C.

§ 856(a)(1)). Section 856(a)(1) makes it unlawful to “knowingly open, lease, rent, use, or

maintain any place, whether permanently or temporarily, for the purpose of manufacturing,

distributing, or using any controlled substance.” Our cases interpreting § 856(a)(1) demonstrate

that prescribing controlled substances qualifies as distribution under that statute. See United

States v. Huffman, 529 F. App’x 426, 430–31 (6th Cir. 2013) (concluding that the pills

prescribed by a doctor in a pill mill were “attributable to Huffman’s crime of maintaining

premises for the purpose of unlawfully distributing controlled substances”). This is also in line

with the meaning of “distribute” under 18 U.S.C. § 841(a)(1), which makes it a crime to

knowingly and intentionally “manufacture, distribute, or dispense, or possess with intent to

manufacture, distribute, or dispense, a controlled substance.” See United States v. Flowers,

818 F.2d 464, 468 (6th Cir. 1987) (holding that “Congress intended that a person could violate




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No. 15-6114, United States v. Blake


section 841(a)(1) without actually distributing the controlled substances, but only by writing a

prescription for their distribution”).

        Here, it is undisputed that Superior One and Elite Care wrote medically unnecessary

prescriptions for controlled substances—Blake stipulated to it as part of her plea agreement—and

that Blake, as owner and operator, maintained the clinics. Accordingly, the district court did not

err in applying the two-level enhancement under § 2D1.1(b)(12).

        B. Enhancement for Obstruction of Justice

        Blake makes a rather opaque argument that the district court erred in applying a two-level

enhancement under U.S.S.G. § 3C1.1 for obstruction of justice when the ultimate sentence

included a component for a separate count of obstruction of justice. The district court ruled

properly, however, under our directly applicable holding in United States v. Green, 305 F.3d

422, 436–37 (6th Cir. 2002). Blake somewhat vaguely suggests that we should not follow this

decision. However, it is well-established law that that a prior published decision of our court

remains controlling authority unless a contrary decision of the United States Supreme Court

requires modification of the decision or this court sitting en banc overrules the prior decision.

United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996). Accordingly, the district court did

not err in imposing the enhancement for obstruction of justice.

        C. Enhancement for Possession of a Weapon

        Under U.S.S.G § 2D1.1(b)(1), a defendant is subject to a two-level enhancement for

possession of a dangerous weapon. We review a district court’s factual finding that a defendant

possessed a firearm for clear error. United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003).

“The government bears the burden of showing by a preponderance of the evidence that the

defendant either ‘actually or constructively possessed the weapon.’” Id. at 665 (quoting United



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No. 15-6114, United States v. Blake


States v. Hough, 276 F.3d 884, 894 (6th Cir. 2002)). If the government meets its burden, the

burden shifts to the defendant to “show that it was clearly improbable that the weapon was

connected with the crime.” Hough, 276 F.3d at 894.

       For the government to meet its burden, it need only prove that the firearm was possessed

during “relevant conduct” to the offense. United States v. Rios, 830 F.3d 403, 437–38 (6th Cir.

2016) (quoting United States v. Penaloza, 648 F. App’x 508, 518 (6th Cir. 2016)); see also

U.S.S.G. § 1B1.3. Relevant conduct under the Guidelines includes “all acts and omissions of

others that were within the scope of the jointly undertaken criminal activity, in furtherance of

that criminal activity, and reasonably foreseeable in connection with that criminal activity” and

that “occurred during the commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or responsibility for that offense.”

U.S.S.G. § 1B1.3(a)(B).

       Here, it is undisputed that Brian Baker, an assistant manager, and Ken Edwards, a

security guard, carried firearms. Blake argues that the district court erred in finding that the

government proved possession because Baker and Edwards were unindicted co-conspirators, not

co-defendants. Our cases recognize no such distinction. Possession of a firearm by a “co-

conspirator”—not a co-defendant—constitutes possession under § 2D1.1(b)(1) so long as the co-

conspirator’s possession is reasonably foreseeable by the defendant. See United States v. Woods,

604 F.3d 286, 290–91 (6th Cir. 2010). Blake provides no contrary authority. And Blake

admitted as a stipulation to her plea agreement that she knew some staff members carried

firearms. The government also proved at sentencing that Blake hired the guards to assist in the

conspiracy. The government, therefore, met its burden to show possession, and the burden




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shifted to Blake to show that it was clearly improbable that the weapons were connected to the

crime.

         Blake argues that the burden should not shift to her and cites a split among the circuits on

this point. Hough, 276 F.3d at 894; see also United States v. Peroceski, 520 F.3d 886, 888 (8th

Cir. 2008). However, as we have said, a panel cannot overrule the decision of another panel.

See Smith, 73 F.3d at 1418. Blake has not shown that it was clearly improbable that the firearms

carried by Baker and Edwards were connected to the crime. Accordingly, the district court did

not commit clear error in determining that the sentencing enhancement applied.

         D. Enhancement for Pattern of Criminal Conduct Engaged in as a Livelihood

         Under U.S.S.G. § 2D1.1(b)(15)(E), a defendant is subject to a two-level enhancement if

the defendant played a leadership role in the offense and “committed the offense as part of a

pattern of criminal conduct engaged in as a livelihood.” Blake argues only that the district court

erred in not imposing the enhancement on all co-defendants. However, the application of that

enhancement does not turn on whether the sentences of all conspirators are similarly enhanced.

Moreover, the enhancement requires that the defendant play a leadership role and Sherard and

Larmore were employees of Blake, who owned and operated the clinics as her primary

occupation. Accordingly, the district court correctly applied the enhancement to Blake.

         E. Vagueness

         Blake argues that U.S.S.G. §§ 3C1.1, 2D1.1(b)(1), and (b)(12) are unconstitutionally

vague. See Johnson v. United States, 135 S. Ct. 2551, 2554 (2015). In Beckles v. United States,

the Supreme Court held that a residual clause under the Guidelines was not unconstitutionally

vague because “the Guidelines are not subject to a vagueness challenge under the Due Process




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No. 15-6114, United States v. Blake


Clause.” 137 S. Ct. 886, 892 (2017), abrogating United States v. Pawlak, 822 F.3d 902 (6th Cir.

2016). Accordingly, Blake’s vagueness challenge is without merit.

       F. Substantive Reasonableness

       Blake also questions the substantive reasonableness of her below-Guidelines sentence,

which we review for abuse of discretion. Blake argues that the imposed sentence “created an

unwarranted sentencing disparity” between Blake and other similarly situated defendants.

(Appellant Br. 19.) Sentences that are within the Guidelines range are presumptively reasonable,

and that presumption carries at least as much weight for below-Guidelines sentences like this

one. United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008).

       Under 18 U.S.C. § 3553(a)(6), a district court must consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been found

guilty of similar conduct” in sentencing. “[T]his factor concerns national disparities between

defendants with similar criminal histories convicted of similar criminal conduct—not disparities

between codefendants.” United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008) (emphasis

in original). The cases cited by Blake where defendants received lower sentences also involved

lower drug quantities. See United States v. Sadler, 750 F.3d 585, 588–89 (6th Cir. 2014)

(involving only about 779 kilograms of marijuana equivalency, compared to the 187,600

kilograms at issue here); United States v. Guzman, 571 F. App’x 356, 359 (6th Cir. 2014)

(involving only 127,564 kilograms of marijuana equivalency). Blake has failed to rebut the

strong presumption of reasonableness accorded to her below-Guidelines sentence.

       The district court acknowledged the advisory nature of the Guidelines, considered

the § 3553(a) factors, correctly calculated the Guidelines range, and sentenced Blake below the




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range. Accordingly, the district court did not abuse its discretion in imposing a 528-month

sentence of imprisonment on Blake.

                                      III. CONCLUSION

       For the preceding reasons, we affirm Blake’s sentence.




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