               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0336n.06

                                       Case No. 16-1691

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                        FILED
UNITED STATES OF AMERICA,                          )               Jun 14, 2017
                                                   )           DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE EASTERN DISTRICT OF
SHAWN HOUSE,                                       )       MICHIGAN
                                                   )
       Defendant-Appellant.                        )




       BEFORE: COOK, KETHLEDGE, and DONALD, Circuit Judges.

       COOK, Circuit Judge. Defendant Shawn House appeals his sentence for conspiring to

sell oxycodone. We AFFIRM.

                                     I. Background Facts

       From 2011 to 2014, House ran a drug-trafficking operation that specialized in distributing

oxycodone pills. The operation obtained the pills from a Michigan pain clinic’s patients, and

employed drug runners to transport the oxycodone to House’s network of dealers in Ohio. Once

the dealers completed their sales, they remitted the proceeds to the runners, who delivered the

drug money to House and fetched the next batch of pills.

       In October 2014, Drug Enforcement Administration (“DEA”) agents began to penetrate

House’s organization. They discovered a runner who had relocated from Detroit, Michigan, to
Case No. 16-1691, United States v. House


Wooster, Ohio, to oversee House’s central-Ohio distribution network. From 2011 to 2014, the

runner made five to six trips per month to Detroit, delivering drug proceeds and picking up

400 to 800 oxycodone pills each time.

          After an encounter with DEA agents in early October 2014, the runner began working as

a confidential informant (“CI”), assisting the agents as a go-between carrying out a series of

controlled deliveries and pick-ups. The first took place on October 5th, when the former-runner-

turned-CI gave House $1,500 in drug proceeds. During this delivery, the CI observed Larry

Rouse, another one of House’s runners, drop off $5,000 and receive 300 pills. The second

happened on October 7th, when the CI picked up 167 pills from Roxann Matter, yet another drug

runner.

          On October 9th, the CI—at House’s direction—handed over $1,950 in drug proceeds to

Matter, who then passed the money to House at a separate meeting place. Upon stopping

House’s vehicle after the meeting, DEA agents found the passenger, Clara Tolon-Garcia, with

the marked cash given by the CI to Matter. The agents also conducted a traffic stop of Matter’s

car and interrogated her. She admitted that from 2013 to 2014, she made trips to House’s Detroit

apartments at least twice per month to unload drug proceeds and collect 150 to 300 pills, which

she would then deliver to House’s drug dealers in Ohio.

          In the last pair of controlled deliveries, House arranged for the CI to bring a total of

$2,650 to Rouse on October 14th and 15th. DEA agents later arrested House.

          A grand jury indicted House for conspiring to possess oxycodone with intent to

distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1), based on his trafficking from 2011 to

2014.      Although House pleaded guilty, he maintained during the plea colloquy that the




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Case No. 16-1691, United States v. House


conspiracy with Rouse to sell oxycodone spanned from November 2013 to September or October

2014, not the entire 2011-to-2014 time period alleged in the indictment.

       At the sentencing hearing, House challenged the presentencing report’s (“PSR”) finding

that he was “an organizer or leader of a criminal activity that involved five or more participants,”

U.S.S.G. § 3B1.1(a), arguing that the government had failed to demonstrate “that there w[ere]

five or more people . . . involved in th[e] conspiracy.” The district court denied House’s

objection to the leadership enhancement, explaining that it accepted the government’s argument

that the following individuals counted as coconspirators: House, Rouse, the CI, Matter, and

Tolon-Garcia.

       House also contended that the PSR should have calculated the quantity of drugs

attributable to him using the conspiracy duration he admitted to at his plea hearing (2013 to

2014) rather than the period alleged in the indictment (2011 to 2014). The court ultimately

decreased the quantity of oxycodone attributed to House on other grounds, but did not shorten

the conspiracy’s length to the one-year period House requested.

       The court sentenced House to 180 months’ imprisonment—below the Guidelines range

of 235 to 240 months. House timely appeals.

                                 II. Leadership Enhancement

       We review the district court’s “legal conclusion that a person is an organizer or leader

under [§] 3B1.1” deferentially, and its factual findings for clear error. United States v. Olive,

804 F.3d 747, 759 (6th Cir. 2015) (citing United States v. Washington, 715 F.3d 975, 982–83

(6th Cir. 2013)). “Under the clear-error standard, we abide by the court’s findings of fact unless

the record leaves us with the definite and firm conviction that a mistake has been committed.”




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United States v. Yancy, 725 F.3d 596, 598 (6th Cir. 2013) (alterations and internal quotation

marks omitted) (quoting United States v. Gardner, 649 F.3d 437, 442 (6th Cir. 2011)).

       Section 3B1.1(a) of the Sentencing Guidelines adds four points to a defendant’s offense

level if he “was an organizer or leader of a criminal activity that involved five or more

participants.”   The commentary to § 3B1.1 defines “participant” as any “‘person who is

criminally responsible for the commission of the offense’ with which the defendant has been

charged.” United States v. Carroll, 893 F.2d 1502, 1507 (6th Cir. 1990) (emphasis added)

(citing § 3B1.1, cmt. 1).

       House argues that the district court erred when it (1) failed to name at least five

participants of the conspiracy, (2) counted the informant as a participant, (3) and made no ruling

or factual findings with regard to his leadership-enhancement objection. We disagree.

       The sentencing transcript refutes House’s first claim that the district court didn’t identify

at least five conspiring participants.    During the hearing, the government listed the five

participants (House, Rouse, the CI, Matter, and Tolon-Garcia), highlighting that House and

Rouse both pleaded guilty to the conspiracy and then elaborating on the roles of the three other

individuals. The court stated that “based on the government’s statements and the [PSR] . . .

[House] was an organizer of this activity that involved five or more participants.” Although

reciting the names would have established a clearer record, the court was under no obligation to

do so since it expressly adopted the government’s list of participants, and the record supports the

court’s findings. United States v. Thomas, 373 F. App’x 538, 541 (6th Cir. 2010) (“[O]ur review

would be assisted greatly by the district court’s identifying the individuals it found were

participants in [defendant]’s scheme. But since the court properly held that the numerosity




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Case No. 16-1691, United States v. House


requirement of § 3B1.1 was satisfied, we find no error.” (citing United States v. Vandeberg,

201 F.3d 805, 809–11 (6th Cir. 2000))).

        Next, House contends that the CI cannot be counted as one of the five participants

because an informant cannot be held “criminally responsible.” But House presents only half the

law here. Although an informant cannot be held criminally responsible for his investigative

work on behalf of the government, see United States v. Penaloza, 648 F. App’x 508, 514 n.3 (6th

Cir. 2016) (citing Carroll, 893 F.2d at 1508–09), he can be held responsible for his involvement

in the criminal activity before the informant started cooperating with the government, United

States v. Nanez, No. 06-6039, 2007 WL 2386474, at *7 (6th Cir. Aug. 21, 2007) (citing United

States v. Dyer, 910 F.2d 530, 533 (8th Cir. 1990)). Because the CI was a drug runner in the

years leading up to his government cooperation, the district court properly found that the CI

qualified as a participant.

        Last, in his reply brief, House argues that the district court failed under Federal Rule of

Criminal Procedure 32(i)(3)(B) to rule on his objection to the number of participants. House has

likely forfeited this argument because he did not raise it below and mentions it only in a footnote

(without any citation to relevant legal authority) in his opening appellate brief. United States v.

Layne, 192 F.3d 556, 566–67 (6th Cir. 1999) (“[I]ssues adverted to in a perfunctory manner . . .

are deemed waived.”) (citation and internal quotation marks omitted). But even if House had

properly objected, the sentencing transcript shows that the district court considered the

competing arguments, agreed with the government, and decided that the evidence supported a

finding of five participants. We therefore discern no error.




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Case No. 16-1691, United States v. House


                                     III. Conspiracy Duration

       “We review a district court’s drug-quantity finding for clear error.”      United States v.

Porter, 560 F. App’x 543, 545 (6th Cir. 2014) (citation omitted).

       House argues that the district court’s failure to address his objection to the PSR’s alleged

conspiracy duration led to an erroneous increase in the quantity of drugs attributed to him. But

because he offers no contrary evidence to dispute the facts supporting the PSR’s conclusion

about the conspiracy’s length, the district court did not err.

       House contended during the sentencing hearing that the district court should have held

him responsible solely for the drugs trafficked from November 2013 to October 2014, supporting

this argument with his “belief” that he participated in the conspiracy for that time period.

Although the district court did not rule on the objection explicitly, it clearly relied on the PSR’s

finding of a four-year period in calculating the drug quantity.

       On appeal, House seeks to bolster his one-year-conspiracy claim with these two facts:

(i) he pleaded to a conspiracy stretching from only 2013 to 2014, and (ii) Matter admitted that

she participated in the conspiracy for the same period.

       Neither of these assertions warrants resentencing. A district court may generally rely on

the PSR’s facts unless the defendant produces evidence that contradicts the PSR’s findings.

United States v. Mustread, 42 F.3d 1097, 1102 (7th Cir. 1994) (“A defendant cannot show that a

PSR is inaccurate by simply denying the PSR’s truth. . . . [H]e must produce more than a bare

denial, or the judge may rely entirely on the PSR.” (internal citations omitted)). Here, the PSR’s

conspiracy timeline comes from the CI’s statements that the CI trafficked oxycodone for House

from 2011 to 2014.       House therefore needed to produce evidence that impugns the CI’s

credibility or otherwise shows the statements to be unreliable. See United States v. Lang,


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Case No. 16-1691, United States v. House


333 F.3d 678, 681 (6th Cir. 2003) (quoting Mustread, 42 F.3d at 1102)). Neither his plea

agreement nor Matter’s statement casts doubt on the reliability of the CI’s statements to DEA

agents confirming that House trafficked from 2011 to 2014.

       Moreover, that House limited his plea agreement to the 2013-to-2014 timespan does not

allow him to evade responsibility for any conduct relevant to sentencing—i.e., his involvement

in trafficking oxycodone from 2011 to 2013. United States v. Louchart, 680 F.3d 635, 638 (6th

Cir. 2012) (noting that “limiting the admission of facts from a guilty plea to . . . those explicitly

admitted to by the defendant does not keep the government from supporting a sentence with

related conduct”). The district court was therefore free to rely on the PSR’s finding on the

conspiracy’s length, irrespective of House’s plea.

                                  IV. Career-Offender Status

       Finally, House claims that the district court erred in sentencing him as a career offender,

arguing that his three prior drug convictions do not qualify as predicate offenses under the

Sentencing Guidelines. Because he raises this objection for the first time on appeal, we review

for plain error. See United States v. Hickman, 303 F. App’x 279, 281 (6th Cir. 2008) (citation

omitted).

       To decide whether a given conviction qualifies as a predicate offense under U.S.S.G.

§ 4B1.1(a), we generally use the “categorical approach.” Mathis v. United States, 136 S. Ct.

2243, 2248–49 (2016). But where the statute of conviction is “divisible”—i.e., lists elements in

the alternative such that the statute “comprises multiple, alternative versions of the crime”—we

employ the “modified categorical approach.” Descamps v. United States, 133 S. Ct. 2276, 2284

(2013). That approach entails sorting through the alternative elements to determine whether any

of them “matches an element in the generic offense,” and if one does, “consult[ing] a limited


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Case No. 16-1691, United States v. House


class of documents . . . to determine which alternative formed the basis of the defendant’s prior

conviction.” Id. at 2281; see also Mathis, 136 S. Ct. at 2248–49.

       House maintains that the controlled-substance statute underlying his three prior drug

convictions is indivisible. But we have already addressed Mich. Comp. Laws § 333.7401’s

divisibility in United States v. Tibbs, No. 15-1060, 2017 WL 1314933 (6th Cir. Apr. 10, 2017).

Although unpublished, we find its reasoning persuasive and therefore adopt its conclusion that

Michigan’s controlled-substance statute is divisible. Id. at *4–5.

       With the question of divisibility resolved, we proceed to the modified categorical

approach and make short work of House’s challenge to his career-offender designation. Section

333.7401 enumerates several alternative crimes: “manufactur[ing], creat[ing], deliver[ing], or

possess[ing] with intent to manufacture, create, or deliver a controlled substance.” The generic

controlled-substance definition, taken from U.S.S.G. § 4B1.2(b), likewise “prohibits the

manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the

possession of a controlled substance . . . with intent to manufacture, import, export, distribute or

dispense.”   The alternative crime in question from Michigan’s controlled-substance law—

possession with intent to deliver—fits both the Sentencing Guidelines’ generic offense—

possession with intent to distribute or dispense—and House’s charge from his indictment. The

district court therefore did not err in counting House’s three prior felony drug convictions toward

his career-offender enhancement.

                                         V. Conclusion

       For these reasons, we AFFIRM.




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