                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0609n.06

                                    Nos. 14-5188; 14-5364


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                     )                                  FILED
                                              )                            Aug 27, 2015
       Plaintiff-Appellee,                    )                        DEBORAH S. HUNT, Clerk
                                              )
v.                                            )
                                              )     ON APPEAL FROM THE UNITED
DEANDRE LAMONT BLACKMAN and                   )     STATES DISTRICT COURT FOR THE
DOUGLAS MARTIN,                               )     EASTERN DISTRICT OF KENTUCKY
                                              )
       Defendants-Appellants.                 )
                                              )




BEFORE:       DAUGHTREY, GIBBONS, and GRIFFIN, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge.                   Defendants Deandre Lamont

Blackman and Douglas Martin were indicted, along with four other co-defendants, for their

participation in a drug-trafficking conspiracy involving distribution of heroin, cocaine,

oxycodone, and hydrocodone. Blackman pleaded guilty to conspiracy and, based on his limited

criminal history, received a prison sentence of 50 months. Martin chose to stand trial and was

convicted of conspiracy. In addition, the jury found Martin guilty of threatening a witness, in

violation of 18 U.S.C. § 1512(b)(1). The district court sentenced Martin to serve concurrent

prison sentences of 151 months.      On appeal, both Blackman and Martin challenge the

reasonableness of their prison sentences. Martin also contends that information gathered by
Nos. 14-5188; 14-5364, United States v. Blackman, et al.


police during warrantless searches of his cellular telephones should have been suppressed and

that the proof at trial was insufficient to support his conviction for witness tampering.

       We find no reversible error in connection with the issues raised by defendant Martin and,

therefore, affirm his conviction and sentence. However, we conclude that because defendant

Blackman’s sentence is procedurally unreasonable, it must be vacated and his case remanded for

resentencing.

                     FACTUAL AND PROCEDURAL BACKGROUND

       At approximately 1:15 a.m. on March 15, 2013, Paris (Kentucky) police officers

Abdullah Bholat and Matthew Reed were “running radar” on Lexington Road in separate police

vehicles when Reed clocked a car traveling 83 miles per hour in a 55-mile-per-hour zone. Both

officers gave pursuit and, after stopping the speeding vehicle, Officer Reed approached the car

and noticed that all four windows had been rolled down, despite the fact that the temperature at

that time was only 30 degrees. When he detected a strong smell of marijuana emanating from

the car, Reed asked the occupants to step out of the vehicle.

       Upon exiting, the front-seat passenger, Aniema Udousoro (also known as “James” and

“Toy Story”) volunteered that he possessed a gun, and Reed confiscated a .45 caliber Smith &

Wesson M&P from a holster on Udousoro’s hip. Officer Bholat meanwhile directed defendant

Martin to step out of the car. After Martin gave his consent to a search of his person, the officer

“pulled out four cell phones and a large sum of cash, which totaled $856,” from Martin’s left

front pocket. A further search of the car by the police uncovered another cell phone and a small

baggie containing a green, leafy substance that appeared to be marijuana.

       The officers arrested Martin and Udousoro for public intoxication because both men

appeared to be under the influence of marijuana. The driver of the car, Jessica Cavezza, was



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


charged with careless driving and also was taken into custody with Martin and Udousoro. The

fourth occupant of the vehicle, Andre Hawkins, was not arrested immediately, but he

nevertheless agreed to accompany the officers to the police station for an interview.

         Once at the police station, observations of and discussions with the arrested individuals

led to further discoveries. Specifically, Udousoro admitted that he had swallowed a baggie

containing 49 oxycodone pills, a baggie that later was recovered from Udousoro’s stool after he

passed the baggie at a nearby hospital.1 Additional caches of money also were recovered after

the initial searches—$800-$850 from Udousoro’s wallet and another $5,300 from one of

Martin’s pants pockets. Most damningly, one of the four occupants of the car directed police to

a room in the Red Roof Inn in Lexington, Kentucky, that Cavezza, Hawkins, Martin, and

Udousoro allegedly had visited 15 or 20 minutes before the 1:15 a.m. traffic stop that led to their

arrests. Based upon observations made at the motel, the police detained the room’s occupants,

defendant Deandre Blackman and Chinail Terry, and obtained a warrant to search the area where

Blackman and Terry had been staying. Execution of that warrant resulted in the confiscation of

18.6 grams of cocaine, almost three ounces of heroin, a bottle of 50 hydrocodone pills, digital

scales, $2,298 in cash, a single .38 caliber bullet, and a bus ticket purchased by defendant

Blackman that had been used by him to travel from Detroit to Cincinnati, Ohio, during the late-

night and early-morning hours of March 13 and March 14, 2013. In light of those discoveries,

the police then arrested Blackman and Terry for possession of the controlled substances.

         Based upon the evidence obtained by the police, Blackman and Martin, along with

Udousoro, Hawkins, Cavezza, and Terry, were indicted for conspiring from “a day in March

2013” through March 15, 2013, to possess with intent to deliver heroin, cocaine, oxycodone, and


1
  That recovery validated Cavezza’s assertion to the police that, when their vehicle was stopped, the quartet was on
its way to Millersburg, Kentucky, to sell pills to a couple known to Cavezza.

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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


hydrocodone. Prior to trial, however, Blackman pleaded guilty to the charge against him. The

district court sentenced Blackman to 50 months in prison, a sentence based in part upon an

increase in his base offense level due to the district court’s determination that cell-phone pictures

of Blackman holding a firearm and of the firearm by itself indicated that the defendant possessed

a dangerous weapon in connection with the offense. See U.S.S.G. § 2D1.1(b)(1).

        Cavezza was released on bond on the condition that she remain under house arrest

pending the resolution of the criminal case against her. While so restricted, Cavezza reported

that she received a telephone call from a friend of hers who was an inmate in a detention facility.

While she was on that call, defendant Martin, who at the time still was incarcerated, broke in on

the conversation and suggested that he and Cavezza agree to name Hawkins as the major actor in

the conspiracy.    Moreover, during their phone conversation, Cavezza reported that Martin

referred to her attorney and to her court date, as well as indicating that he would “pop up on

Main Street” to visit Cavezza, but that he “d[id]’nt want to scare” her when he did so. Despite

assuring Martin that she wouldn’t be scared by his visit, Cavezza later claimed that she felt

intimidated by the call because Martin never before had been to her house and, immediately after

hanging up with Martin, she telephoned FBI Special Agent Michael Van Aelstyn to report her

trepidation. As a result of Martin’s actions, the government obtained a superseding indictment

against him that not only included the prior conspiracy charge, but also added a count alleging

that he “knowingly used, or attempted to use, intimidation, threats, or corrupt persuasion toward

[Cavezza] with the intent to influence, delay or prevent her testimony in a jury trial or other

official proceeding.”

        Cavezza, like Blackman, ultimately pleaded guilty to the conspiracy charge before going

to trial.   Unlike Blackman, she agreed to testify against Martin at his trial and provided



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


incriminating testimony concerning Martin’s role in the drug-trafficking conspiracy. While on

the witness stand, Cavezza claimed that she first knew Martin as her sister’s supplier of

oxycodone. In January or February of 2013, however, she herself began buying heroin from

Martin or from Martin’s associate—a woman known as “Tiny”—on almost a daily basis. On the

afternoon of March 14, 2013, Cavezza sent a text message to one of the cell phones belonging to

Martin that the police later seized in the early morning hours of March 15. In that text, Cavezza

inquired whether Martin had any “food,” a code word for heroin. According to Cavezza, she

then met up with Martin and Udousoro later that day at Tiny’s home, as directed by Martin.

       Over the course of the next six hours or so, Cavezza observed Martin sell pills to an

individual named Luke, drove Martin to the Red Roof Inn to obtain cocaine to sell to another

person, heard Martin instruct Blackman in the Red Roof Inn room on how to weigh and bag

cocaine for sale, and drove Martin to a subdivision near the motel where he sold a bag containing

either heroin or cocaine to a person living there. Eventually, Cavezza, Martin, and Udousoro

ended up at the apartment of a women named Desiree, one of Martin’s girlfriends. As the trio

was leaving Desiree’s residence, a man later identified as Andre Hawkins joined them in the car,

and they drove back to the Red Roof Inn in Lexington. Once in the parking lot of the motel,

Martin called Blackman and directed him to come down from the motel room to Cavezza’s car.

When Blackman arrived at the vehicle, Martin handed him “a bundle of white powder” before

Cavezza, Martin, Udousoro, and Hawkins drove away toward Millersburg and their eventual

encounter with the police.

       During its case-in-chief, the government also elicited testimony from FBI Agent Aelstyn.

Before the jury, he not only corroborated that Cavezza had contacted him and expressed her fear

after receiving the telephone call from Martin, but he also explained in court that the FBI



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


possessed the capability to recover texts, call logs, and other data sent or received on cell phones.

He then detailed for the jury information retrieved from one of the phones taken from Martin that

indicated that Cavezza and Martin indeed had exchanged text messages regarding purchases of

heroin from the defendant.

       Martin himself was the sole witness called by the defense at trial. Not surprisingly, he

denied his involvement in the drug-trafficking conspiracy and claimed that he had driven with

Udousoro and Terry to Lexington from his home in Detroit for the sole purpose of celebrating

his birthday with two of his girlfriends who lived in the Lexington area. He further stated under

oath that he did not provide oxycodone pills to Cavezza, that he did not instruct Blackman on

how to weigh or package cocaine, and even that the cell phone that contained the incriminating

text messages was not his and had not been in his pocket.

       Presented with the conflicting accounts of the activities of March 14 and 15, 2013, the

jury chose to credit the testimony of the government witnesses and found Martin guilty both of

conspiracy and of tampering with a witness. After a sentencing hearing, the district court

imposed upon Martin concurrent, within-Guidelines prison sentences of 151 months.

       Blackman now raises on appeal a single sentencing issue, and Martin raises issues

challenging both his convictions and his sentence.

                                          DISCUSSION

Blackman’s Challenge to the Two-Level Firearm Enhancement

       In his sole issue on appeal, defendant Blackman asserts that the district court erred in

calculating his sentence when it applied a two-level enhancement for his alleged possession of a

firearm in the commission of the offense of conviction. See U.S.S.G. § 2D1.1(b)(1). He argues




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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


that because no firearm was recovered from his person or from the motel room in which he was

staying, the sentence imposed upon him was procedurally unreasonable.

       As has been well established, “[w]e review a district court’s sentencing determination,

under a deferential abuse-of-discretion standard, for reasonableness.” United States v. Pearce,

531 F.3d 374, 384 (6th Cir. 2008) (citation and internal quotation marks omitted).           That

reasonableness review “has both a procedural and a substantive component.” United States v.

Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 51

(2007)).   Procedural errors include “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence—including an explanation for any deviation from the Guidelines

range.” Gall, 552 U.S. at 51.

       Blackman’s guilty plea to the charge of conspiracy to possess with intent to deliver

controlled substances resulted in an applicable base offense level of 24. Because Blackman

demonstrated his acceptance of responsibility for his actions, because he timely notified

authorities of his intention to plead guilty, and because he “provided complete information to the

government concerning his own involvement in the offense,” the district court agreed to reduce

that offense level by three. However, the computation then was adjusted upward two levels

based upon the court’s finding that Blackman possessed a firearm in connection with the

underlying conspiracy offense. The final offense level of 23, in conjunction with Blackman’s

applicable criminal history category, resulted in an advisory Guidelines sentencing range of 46-

57 months, leading the district court to sentence Blackman to 50 months in prison. Without the




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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


two-level increase, Blackman would have been subject to an advisory Guidelines range of only

37-46 months.

       The government readily conceded and the district court found that no firearm was

recovered from Blackman at the time of his arrest and that no firearm was found in the Red Roof

Inn room in which Blackman was staying.               Nevertheless, the district court justified the

application of the § 2D1.1(b)(1) enhancement in large part based upon a photograph taken by

Blackman on his cell phone that showed him holding a gun. In the government’s own response

to Blackman’s objection to application of the enhancement, however, the prosecution admitted

that the cell-phone photograph was taken at 12:01 p.m. on March 12, 2013, more than 34 hours

prior to Blackman’s departure from Detroit by bus for Cincinnati, Ohio, and, eventually, for

Lexington, Kentucky. Although additional pictures retrieved from the defendant’s cell phone

included depictions of large quantities of controlled substances, photographs that the government

attempted to link with the March 12 photograph, those pictures of “dealer amounts of drugs”

“were created on March 14, 2013,” a full two days after the “selfie” of the gun-toting Blackman.

       Nevertheless, the district court concluded “that the gun was possessed during the course

of and in the scope of the conspiracy.” According to the district judge, the indictment in this

matter alleged a conspiracy beginning “[o]n or about a day in March 2013, the exact date

unknown, and continuing through on or about March 15, 2013.” Given this lack of specificity,

Blackman’s possession of the firearm prior to arriving in Lexington “would be within the time

period that is charged in the indictment to which he entered a plea,” at least theoretically.

Furthermore, as the district court explained:

       [J]ust because the gun [w]as not found in the room does not mean it didn’t travel
       to Lexington, but also this defendant did have actions. He had to take some
       actions before traveling to Kentucky to engage in this conspiracy, and the Court
       does find that he possessed it in this regard as well.

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Nos. 14-5188; 14-5364, United States v. Blackman, et al.



                                            *****
       The Court also would cite the parties to the fact that [a .38 caliber] bullet that was
       found inside the hotel room is some indication, although not the tipping point, it is
       some – it’s some information the Court can consider that a weapon, other than the
       weapon that Mr. Udousoro possessed travelled to Lexington. There would be no
       reason to have a bullet without a gun.

       Application Note 11(A) to § 2D1.1 specifies simply that the two-level enhancement of

§ 2D1.1(b)(1) “should be applied if the weapon was present, unless it is clearly improbable that

the weapon was connected with the offense.”           Earlier Sixth Circuit cases interpreting the

Guidelines section construed the Application Note to require the government to establish “that

(1) the defendant actually or constructively ‘possessed’ the weapon, and (2) such possession was

during the commission of the offense.” United States v. Hill, 79 F.3d 1477, 1485 (6th Cir. 1996)

(citation omitted). In United States v. Faison, 339 F.3d 518, 520 (6th Cir. 2003), however, we

recognized that “[e]ffective November 1, 1991, . . . the guidelines removed the requirement of

the weapon being possessed during the commission of the offense. Since that date, all that the

government need show is that the dangerous weapon be possessed during ‘relevant conduct.’”

Thus, for purposes of this case, the enhancement may apply if a firearm was possessed by

Blackman “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,” or if the

possession “were part of the same course of conduct or common scheme or plan as the offense of

conviction.” U.S.S.G. §§ 1B1.3(a)(1)(B) and (a)(2).

       “Once the government meets its burden, a [rebuttable] presumption arises that the

weapon was connected to the offense.” United States v. Greeno, 679 F.3d 510, 514 (6th Cir.

2012) (citations and internal quotation marks omitted). That presumption leads to the application

of the two-level enhancement unless “the defendant [shows] that it was ‘clearly improbable’ that



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


the weapon was connected to the offense.” United States v. Catalan, 499 F.3d 604, 606 (6th Cir.

2007) (citation omitted).

       We review factual findings made by the district judge at sentencing only for clear error.

Id. A court’s factual finding will be considered “clearly erroneous” if “the reviewing court on

the entire evidence is left with the definite and firm conviction that a mistake has been

committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (citation omitted).

The sentencing court’s finding, however, still must be supported by “some minimum indicium of

reliability beyond mere allegation.” United States v. Robison, 904 F.2d 365, 371 (6th Cir. 1990)

(citation omitted).   And, in the end, “[t]he burden is on the government to prove, by a

preponderance of the evidence, that a particular sentencing enhancement applies.” United States

v. Dupree, 323 F.3d 480, 491 (6th Cir. 2003) (citation omitted).

       Only through supposition and “mere allegation” could the district court in this case reach

the conclusion that Blackman’s cell-phone picture of himself with a firearm necessarily

connected that firearm with the drug-trafficking conspiracy or any relevant conduct related to

that conspiracy. As the government’s own trial testimony made clear, the “incriminating” photo

of Blackman holding a firearm was taken days before the defendant’s arrival at the Red Roof Inn

in Lexington, and there is no indication in the earlier photograph that Blackman was, at the time

of the taking of the picture, in possession of controlled substances or acting in concert with

Martin, Udousoro, Hawkins, or any other individual in the possession or distribution of heroin,

cocaine, oxycodone, or hydrocodone.       In an attempt to link the March 12 photo with the

activities of March 14 and March 15 that occurred more than three hundred miles away, the

district court intuited that Blackman “had to take some actions before traveling to Kentucky to

engage is this conspiracy.” Although logically true, neither the government nor the district court



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


point to any evidence that the cell-phone picture itself was taken in connection with

conspiratorial actions. Indeed, this court has recognized in other instances that “[t]here may be

situations where the facts demonstrate that a defendant possessed a firearm for a legitimate

purpose unconnected to any criminal activity, and that his possession of the firearm was

therefore not part of the same course of conduct as the crime of conviction.” United States v.

Partington, 21 F.3d 714, 719 (6th Cir. 1994). Because he pleaded guilty before trial, and

because he did not testify under oath at his sentencing hearing, it is true that Blackman did not

offer evidence of his legitimate, innocent possession of the firearm in the cell-phone photo.

Equally true, however, is the fact that the government offered absolutely no evidence to the

contrary. In short, the district court’s “factual finding” that the gun appearing in the picture

taken in Detroit was possessed in connection with the illegal acts that occurred in Kentucky is

based not upon evidence, but upon supposition, conjecture, and speculation only.

       In an effort to mask this evidentiary insufficiency, the government relies almost

exclusively on the case of United States v. Moore, 416 F. App’x 715 (10th Cir. 2011), for the

proposition that “[t]he pictures on Blackman’s cellphone provide ample evidence that he was in

possession of a firearm while committing the drug trafficking offense, even though the firearm

was not recovered.” Reliance upon Moore is unavailing for multiple reasons, however.

       First, Moore is an unpublished opinion. Although Rule 32.1(a) of the Federal Rules of

Appellate Procedure provides that a court may not restrict the citation to such “not for

publication” opinions issued on or after January 1, 2007, the Advisory Commission Notes to that

rule make clear that the text of the rule “says nothing about what effect a court must give to one

of its unpublished opinions or to the unpublished opinions of another court.” Filling that void,

the Sixth Circuit’s own Rule 32.1(b) explicitly provides that only “[p]ublished panel opinions are



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binding on later panels.”     See also Tanner v. Yukins, 776 F.3d 434, 441 (6th Cir. 2015)

(unpublished opinion lacks precedential value).

       Second, Moore not only is not designated for publication, it was not even decided by a

panel of this court.   Although we may look to other circuit’s opinions for guidance, “we

recognize that we are not bound by the law of other Circuits.” Terry v. Tyson Farms, Inc., 604

F.3d 272, 278 (6th Cir. 2010) (citations omitted).

       Third, and most important, Moore is so factually distinguishable from Blackman’s case

that it provides little assistance in addressing the issue the defendant now raises in his appeal of

his sentence. Moore was a passenger in a vehicle stopped by the police. The arresting officers

observed two firearms in the vehicle, one on the driver’s seat and another underneath the

passenger’s seat. Because Moore had been convicted of two felonies at different times earlier

that same year, he was charged in federal court with being a felon in possession of a firearm, in

violation of the provisions of 18 U.S.C. § 922(g)(1). Moore, 416 F. App’x at 716. Moore

eventually pleaded guilty to the charge. The presentence report prepared for Moore’s sentencing

hearing noted that a cell phone seized from Moore contained a photograph of Moore holding

three firearms, none of which were the weapons recovered from the vehicle upon Moore’s arrest.

Id. at 717.   Because that photo was created after Moore’s earlier felony convictions, the

government sought to enhance Moore’s offense level, arguing that the possession of the three

firearms in the picture, taken when Moore was a convicted felon, “and thereby prohibited from

possessing firearms, . . . would constitute relevant conduct.” Id.

       The very recitation of the facts in Moore highlights the stark differences between that

case and Blackman’s. The photo taken from Moore’s cell phone unmistakably memorialized

Moore’s commission of a crime—a crime that was identical to the one for which he then was



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


being sentenced. By contrast, nothing in the firearm photos extracted from Blackman’s phone

provides an explicit nexus to the defendant’s actions in weighing and packaging drugs in a motel

room in Lexington, Kentucky.       In fact, the government has not alleged that Blackman’s

possession of the firearm depicted in the photo was illegal, nor did anything in the photo suggest

that the defendant’s possession of the firearm was connected in any way with the drug-

trafficking conspiracy or, indeed, any drug offense whatever.

       In the discussion of his reasons for applying the two-level sentencing enhancement, the

district judge made reference to the .38 caliber bullet that was determined to be in Blackman’s

possession when he was arrested. Although claiming that the presence of the bullet was not a

dispositive factor in the sentencing determination, the district judge rationalized that “[t]here

would be no reason to have a bullet without a gun.” But, the government adduced absolutely no

proof that the bullet belonged to any gun involved in the conspiracy or that other ammunition of

comparable caliber was found on or near any of the charged co-conspirators. Obviously, the .38

caliber bullet was not possessed to arm the .45 caliber weapon confiscated from Udousoro, and

the government also offered no evidence that the bullet was compatible even with the firearm

pictured in the cell-phone photo. The possession of the single bullet thus lends no support to the

government’s position on this issue. Put simply, although a sentencing judge is permitted to

make reasonable inferences from the evidence when determining whether to impose an

enhancement, see United States v. Vandewege, 561 F.3d 608, 609 (6th Cir. 2009); United States

v. Pillault, 783 F.3d 282, 286-87 (5th Cir. 2015) (citation omitted), in light of the foregoing, we

conclude that the district judge’s conclusion as to this enhancement was unreasonable.

       To the extent that the government’s reference to the bullet can be considered merely an

attempt to balance factors that a sentencing court should consider “when determining whether



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


the application of a Section 2D1.1(b)(1) enhancement was appropriate,” Greeno, 679 F.3d at

515, even that effort is mistimed and irrelevant for purposes of this appeal. In Greeno, we listed

the following factors to be considered before applying the firearm enhancement:

       (1) the type of firearm involved; (2) the accessibility of the weapon to the
       defendant; (3) the presence of ammunition; (4) the proximity of the weapon to
       illicit drugs, proceeds, or paraphernalia; (5) the defendant’s evidence concerning
       the use of the weapon; and (6) whether the defendant was actually engaged in
       drug-trafficking, rather than mere manufacturing or possession.

Id. (emphasis added) (citations omitted). However, those factors, “none of which is alone

controlling,” id., come into play only after the district court concludes that the government has

met its initial burden of showing “that the dangerous weapon [was] possessed during ‘relevant

conduct.’” Faison, 339 F.3d at 520. In this case, the district court erred in finding that the

government did indeed satisfy that burden, given that no testimony or physical evidence—indeed

nothing other than pure speculation—tied Blackman’s participation in any drug-trafficking to the

firearm in the photograph recovered from his cell phone.

       As a consequence, we conclude that the district court unreasonably applied the two-level

enhancement of § 2D1.1(b)(1) to Blackman’s base offense level. The sentence must therefore be

vacated and the case remanded for resentencing.

Martin’s Challenge to the Warrantless Search of His Cell Phone


       Defendant Martin contends that his right to be free from unreasonable search and seizure

under the Fourth Amendment was violated when the police, without a warrant, accessed

information on his cell phone—information that corroborated the fact that he had been engaged

in drug-trafficking activities. Specifically, he points to recovered text messages he sent to

Jessica Cavezza in which Martin referenced providing her with “20 packs” and “trays of food”—

phrases denoting heroin—and in which he expressed his “need to get rid of these 15s”—meaning

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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


15-milligram tablets of oxycodone.       Martin bases his objection to the admission of trial

testimony about those text messages on the recent United States Supreme Court decision in Riley

v. California, 134 S.Ct. 2473 (2014), in which the Court ruled “that a warrant is generally

required before [a search of information contained on a cell phone], even when a cell phone is

seized incident to arrest.” Id. at 2493. According to Martin, because Riley was decided during

the pendency of this direct appeal, its holding is applicable to him, even though the Riley ruling

was not released until after Martin was convicted. See, e.g., United States v. Buford, 632 F.3d

264, 269 (6th Cir. 2011) (“It is firmly established that a decision of the Supreme Court declaring

a new constitutional rule applies ‘to all similar cases pending on direct review.’” (citing Griffith

v. Kentucky, 479 U.S. 314, 322-23 (1987))).

       However, because Martin did not object to the introduction of this evidence at trial, he

has forfeited this issue on appeal, and accordingly our review is for plain error affecting Martin’s

substantial rights, as Martin himself concedes, United States v. Houston, _F.3d_, No. 14-5295,

2015 WL 4114604, at *2 (6th Cir. July 9, 2015). Thus, in order to obtain reversal, Martin “must

show that [the search of his cell phone was] 1) error, 2) that is plain, and 3) that affects

substantial rights, and if so, he must persuade us that 4) the error seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” United States v. Yancy, 725 F.3d 596,

601 (6th Cir. 2013) (citation and internal quotation marks omitted).

       It is true that “[t]he text messages recovered from the cell phones found on Martin’s

person directly implicated him in drug trafficking.” Other trial testimony, however, also linked

Martin directly to the conspiracy to distribute various controlled substances. Chief among that

testimony was the evidence offered by Cavezza. Indeed, even Martin concedes in his brief that

“Cavezza’s testimony was highly incriminating.” Nevertheless, he argues that, without the



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


corroboration offered by the text messages sent by Martin, the jury might not have credited

Cavezza’s testimony given both her admission that she was under the influence of narcotics

during the relevant time period and her motivation to provide a narrative supporting the

prosecution’s theory in order to obtain favorable treatment for herself.

        However, an examination of Cavezza’s trial testimony in December 2013 reveals that, as

a witness, she was incredibly detailed in her recall of events that occurred nine months earlier.

Standing alone, her own inculpatory statements and her eyewitness account of Martin’s

participation in the conspiratorial acts provided the jury with overwhelming evidence of the guilt

of all the co-conspirators. Moreover, her testimony concerning Martin’s delivery of a bag of a

white powdery substance to defendant Blackman was corroborated not only by the testimony of

Chinail Terry that she received a telephone call to have Blackman meet other co-conspirators

downstairs in the parking lot of the Red Roof Inn, but also by the fact that the arresting officers

found in the motel room a bag of cocaine or heroin that matched the description of the package

Cavezza claimed Martin handed to Blackman.

        It can never be said with absolute certainty in any case that the elimination of one piece

of evidence or one sentence of oral testimony would not have affected the verdict returned by a

jury. In this case, however, the overwhelming evidence of Martin’s guilt, separate from the text

messages recovered from two of his four cell phones, is sufficient for us to conclude that Martin

fails to establish plain error.

Martin’s Challenge to the Sufficiency of the Evidence of Witness Tampering

        Martin also challenges the sufficiency of the evidence adduced at trial to convict him of

tampering with a witness, a conviction that resulted in a prison sentence to run concurrently with

his 151-month sentence for conspiracy. When challenging the legal sufficiency of the evidence



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


to support a guilty verdict, a defendant bears a “heavy burden.” United States v. Pritchett, 749

F.3d 417, 431 (6th Cir.) (citation omitted), cert. denied, 135 S.Ct. 196 (2014). In fact, when

reviewing such a challenge, we ask simply “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis

in original). Moreover, when engaged in such a review, “[w]e do not insert our own findings of

fact; rather, we give full credit to the responsibility of the jury to weigh the evidence, to make

credibility determinations, and to draw inferences.” United States v. Washington, 715 F.3d 975,

979 (6th Cir. 2013) (citing Jackson, 443 U.S. at 319).

       Pursuant to the relevant provisions of 18 U.S.C. § 1512(b)(1), criminal liability is

imposed upon any individual who “knowingly uses intimidation, threatens, or corruptly

persuades another person, or attempts to do so, or engages in misleading conduct toward another

person, with intent to . . . influence, delay, or prevent the testimony of any person in an official

proceeding.” In Count 3 of the superseding indictment returned against Martin, the federal grand

jury charged that Martin’s July 26, 2013, telephone conversation with Jessica Cavezza from a

detention facility was an attempt to influence Cavezza’s testimony in Martin’s trial by conveying

to Cavezza that Martin was aware of details of her criminal case and knew where she lived.

       At trial, the prosecution played in open court a tape recording of that phone conversation.

Martin argued then, as he does now, that a rational trier of fact could not have considered the call

threatening because the recording confirms that Martin spoke to Cavezza in a calm, measured

tone throughout. Furthermore, he contends that any references he made to Cavezza’s case, to her

attorney, to his intention to “pop up on Main Street” to visit her, or to his desire not to scare her

were examples of innocent banter, not attempts to threaten her or influence her testimony.



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


       Martin’s impression of the conversation was drastically different from that of Cavezza,

who testified under oath at the trial that Martin expressed during the call his desire that she

blame all criminal acts on Andre Hawkins. Although she admitted on cross-examination that

Martin never specifically mentioned that he would retaliate against her if she did not testify as

Martin suggested, Cavezza claimed that she felt intimidated and threatened when Martin spoke

of visiting her at her residence, especially because he had never been to her home before. Even

though she expressed to Martin that she was not scared, she claimed that her projected bravado

was false and that, immediately after she ended the call with Martin, she contacted the FBI and

expressed her concerns.

       The jurors listened to the recording of the telephone conversation and evaluated the trial

testimony of both Cavezza and Martin. After doing so, they unanimously determined that Martin

was not a credible witness and that his efforts to influence Cavezza’s testimony, coupled with his

comments that he was monitoring Cavezza’s own proceedings and that he knew where she lived,

were sufficient to establish his guilt of the witness-tampering charge beyond a reasonable doubt.

In finding Martin guilty of the crime, the jury well could have concluded that the tone or volume

of the defendant’s voice on the call was of minimal relevance to a determination of the

defendant’s intent in making the call, especially when viewed in light of the fact that Cavezza, an

individual familiar with Martin, had such a strong and immediate reaction to the message that

she wasted no time in informing federal law enforcement officials of the perceived threat.

Because this court cannot second-guess the credibility determinations of the jury, there exist no

grounds on which to disturb the fact-finders’ verdict on this charge.




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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


Martin’s Challenge to the Substantive Reasonableness of His Sentence

       In a final issue, Martin objects to his 151-month prison sentence, arguing that the

punishment imposed was substantively unreasonable. An appellate review of the substantive

reasonableness of a sentence “will, of course, take into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.”           Gall, 552 U.S. at 51.

“A sentence is substantively unreasonable if the sentencing court arbitrarily selected the

sentence, based the sentence on impermissible factors, failed to consider pertinent [18 U.S.C.]

§ 3553(a) factors, or gave an unreasonable amount of weight to any pertinent factor.” United

States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012) (citation omitted). The reviewing court

“may apply a rebuttable presumption of reasonableness to sentences within the Guidelines,”

Pearce, 531 F.3d at 384 (citing Gall, 552 U.S. at 51), and may not reverse a district court’s

sentencing determination simply because we “might reasonably have concluded that a different

sentence was appropriate.” Gall, 552 U.S. at 51.

       In his challenge to his sentence, Martin argues only that the district court based its

sentence on an impermissible factor, namely, that the judge was unduly focused upon the

defendant’s present marital status, Martin’s marital status at the times the defendant’s children

were born, and Martin’s infidelity. Such considerations are inappropriate when considering the

proper sentence to be imposed for a drug-trafficking conspiracy, and it is undeniable that the

district court did question Martin at length about such issues. However, the court’s inquiry was

triggered by Martin’s own request that the court extend leniency based on the fact that he had

seven children. The district judge, familiar with information in Martin’s presentence report,

interrupted and asked, “Are all of your children illegitimate? Have you been married to any of

the mothers of these children?” When Martin attempted to explain that he had lived with the



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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


mother of five of the children “[i]n common law marriage,” the district judge retorted, “So it’s

common law marriage but never through an official ceremony recognized by a state?”

       Martin then continued with his statement to the court and sought to portray himself as a

positive role model and influence on his sons. The district judge responded:

       And you tell me that you’re a good family man. You’ve been with the same
       woman now for a number of years, but you testified at trial that you were down
       here in Kentucky partying. You’re coming down here to see two separate
       women. You had a room because it was your birthday at the Ramada Inn. You
       were going to go out and stay with the one woman, and you had already been with
       another while you were here. And I’m a little confused about being a good family
       man how all that fits in. Maybe you can explain it to me.

Later, the district judge continued in the same vein:

       My questions to you are related to the fact that I’ve gotten all these letters and
       statements that you’ve made about what a good family man you are and how you
       need to be out supporting your children.

       And so I’ve asked you if you were married to the women that you had these
       children with, and you told me that it’s common law marriage.

       But then at trial you really—you didn’t portray yourself as a family man at trial.
       Just the opposite, a playboy coming down here to Kentucky to party for your
       birthday. These women wanted to see you on your birthday. You didn’t have
       anything to do with drugs, although, you brought Mr. Udousoro with you, or you
       two came together, and he brought the lady from the—from the gentlemen’s club.
       But you’re still a good family man.

       So I’m just trying to find out because you give inconsistent statements, and what I
       think is inconsistent testimony, throughout this proceeding. And I’m just trying to
       get to the bottom of this and find out what’s the truth. I don’t know if I heard it
       from you yet.

       If the district court had based its sentencing determination on its negative reaction to

Martin’s view of commitment and fidelity, well-established sentencing principles undoubtedly

would require us to vacate the defendant’s sentence and remand the matter for resentencing.

However, examination of the complete transcript of Martin’s sentencing hearing establishes that

the district judge based Martin’s sentence upon valid considerations and that he even resisted the

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Nos. 14-5188; 14-5364, United States v. Blackman, et al.


temptation to sentence the defendant above the advisory Guidelines range. In fact, the court

explicitly disavowed its reliance upon inappropriate considerations by explaining:

       I don’t know what type of father the defendant is. I can’t make that determination
       based upon letters that are submitted. I don’t know what type of a spouse that he
       is. I have impressions based upon the testimony that was presented during trial
       and his own statements to the Court, but I can’t make that determination.

       Turning to the considerations that did factor into the sentencing determination, the district

court emphasized that Martin “has not accepted responsibility for his actions,” that “he lied on

the witness stand,” that “[t]his particular offense is a very serious offense,” that Martin “has not

shown respect for the law,” that Martin did not take personal responsibility for this actions, and

that “until he does that, he’s a very serious risk of reoffending, and in doing so, of course, he’s a

danger to the public.” Each of these concerns constitutes a valid basis for imposition of a

sentence and, in the end, the district judge relied upon them to sentence Martin to 151 months in

prison, the top end of the applicable Guidelines range of 121-151 months.

       Because the 151-month sentence was within the relevant range, a rebuttable presumption

arose that the sentence was reasonable.         In the absence of any evidence rebutting that

presumption, Martin’s sentencing challenge is without merit.

                                         CONCLUSION

       For the reasons set out above, we AFFIRM defendant Martin’s convictions and sentence.

However, we conclude that the district court applied an unreasonable enhancement to defendant

Blackman’s base offense level for possession of a dangerous weapon, requiring that we

VACATE Blackman’s sentence and REMAND the case to the district court for resentencing.




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