               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0309n.06

                                          No. 17-3018


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Jun 21, 2018
 UNITED STATES OF AMERICA,                                                  DEBORAH S. HUNT, Clerk

        Plaintiff-Appellee,

 v.                                                  ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR
 LEE T. TURNER,                                      THE NORTHERN DISTRICT OF
                                                     OHIO
        Defendant-Appellant.




BEFORE:        BOGGS, CLAY, and DONALD, Circuit Judges.

       CLAY, Circuit Judge. Defendant Lee T. Turner was convicted in federal district court of

conspiracy to possess with intent to distribute at least one kilogram of a mixture or substance

containing heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i), and 846, and possessing a

firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). He was sentenced to 360 months’

imprisonment. On appeal, Turner raises numerous challenges to his sentence. For the reasons set

forth below, we AFFIRM the district court’s judgment.

                        FACTUAL AND PROCEDURAL HISTORY

       From late 2013 to late 2014, Turner played a central role in a drug conspiracy involving a

dozen people. Operating out of his home in Toledo, Ohio, Turner sold large quantities of heroin

to drug dealers. At times, he introduced drug users to the dealers he supplied. He also recruited

accomplices, taught them to become dealers, and, with a co-conspirator’s help, recorded his
                                            No. 17-3018


customers’ debts in a ledger. He had his heroin stamped, so others would know that he had

supplied it.

        Sometime in November 2014, Toledo police officers seized one-half kilogram of heroin

from a dealer Turner was supplying. The dealer became an informant and told police about

Turner’s role in the conspiracy. With the informant’s help, police officers set up a controlled buy

from Turner for one kilogram of heroin. When Turner arrived at the agreed-upon location carrying

the drugs, he was arrested. A search of Turner’s residence and related locations revealed firearms,

heroin, drug paraphernalia, and $45,000 in cash. Searches of Turner’s cellphones revealed

incriminating text messages.

        In March 2016, Turner pleaded guilty to two crimes: (1) conspiracy to possess with intent

to distribute at least one kilogram of a mixture or substance containing heroin, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(i), and 846; and (2) possessing a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g). The felon-in-possession charge was based on Turner’s prior

convictions for various crimes in Ohio and Michigan state courts.

        Prior to sentencing, and while in jail, Turner called family members to ask them to collect

drug debts on his behalf. He also purportedly tried to convince a fellow inmate to murder the

informant who turned him in, as retribution.1 To deflect suspicion, Turner told the inmate not to

act until after Turner’s sentencing and imprisonment. However, Turner’s plan was thwarted when

the inmate had second thoughts and contacted law enforcement.




        1
          While Turner denies asking the inmate to murder the informant, calling the accusation
“outrageous,” (Def.’s Br. at 43), he has explicitly declined to challenge the district court’s finding
that he made such a request, (Def.’s Reply Br. at 8 (“[W]hile Appellant vehemently denies [the]
outrageous claims, he has not challenged the District Court’s [finding] for appellate purposes, in
light of the nearly insurmountable standard for reversal.”)). Consequently, for purposes of this
appeal, this Court must assume that Turner did plan to have the informant murdered.
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       At sentencing, the parties discussed five issues: (1) whether Turner was an organizer or

leader of the drug conspiracy, triggering a four-point offense-level increase under United States

Sentencing Guideline § 3B1.1(a); (2) whether Turner obstructed justice by plotting against the

informant, triggering a two-point offense-level increase under guideline § 3C1.1; (3) whether

Turner accepted responsibility for his crimes, triggering a three-point offense-level decrease under

guideline § 3E1.1; (4) whether the district court could base its sentencing decision, at least in part,

on Turner’s refusal to identify his heroin suppliers; and (5) whether Turner qualified as a career

offender under guideline § 4B1.1, triggering an increase in his criminal history rating.

       The district court resolved most of these issues in favor of the government. First, it applied

the leadership enhancement, noting that Turner played a central role in the conspiracy, recruited

and vetted accomplices, had assistance from an accomplice in keeping a drug ledger, and asked

family members to collect his debts while he was in jail. Second, it applied the obstruction

enhancement, citing Turner’s plot against the informant. Third, it declined to apply a reduction

for acceptance of responsibility, believing the reduction incompatible with its obstruction finding.

Fourth, it initially determined that its sentencing decision could account for Turner’s failure to

identify his heroin suppliers. However, after the government conceded that this would likely be

improper, the district court stated that it would not consider Turner’s failure to cooperate. Fifth,

the district court determined that Turner qualified as a career offender, citing his prior convictions

for Ohio Robbery under Ohio Rev. Code § 2911.02, and Michigan Felonious Assault under M.C.L.

§ 750.82.

       Based on these rulings, the district court determined that Turner’s guidelines range was

360 months to life imprisonment. It sentenced Turner at the bottom of this range, to 360 months’




                                                  3
                                            No. 17-3018


imprisonment on the drug count and 120 months’ imprisonment on the firearms count, with the

sentences running concurrently.

       On appeal, Turner renews the claims he raised in the district court. In his opening brief,

he states that the district court “clearly and unequivocally considered Appellant’s failure to name

his sources” when determining his sentence. (Def.’s Br. at 50.) However, after the government’s

brief highlighted the district court’s promises not to do so, Turner modified his argument. Now,

in his reply brief, Turner argues that the district court’s promises were ambiguous, making it

“reasonable to conclude the District Court considered Appellant’s failure to cooperate.” (Def.’s

Reply Br. at 16.)

       With regard to his career offender designation, Turner cites United States v. Yates, 866

F.3d 723 (6th Cir. 2017)—decided after his sentencing—which holds that Ohio Robbery is not a

“crime of violence” and therefore cannot trigger the career offender provision. The government

acknowledges that Yates is controlling. (Gov’t Br. at 5–6.) Accordingly, the government concedes

that Turner’s career offender designation was erroneous. (Id.)

                                          DISCUSSION

                                       Standard of Review

       We review a criminal sentence under a deferential abuse of discretion standard, for

procedural and substantive reasonableness. United States v. Bolds, 511 F.3d 568, 578 (6th Cir.

2007). A district court’s “consideration of an impermissible [sentencing] factor is more properly

considered a procedural, not substantive, error.” United States v. Cabrera, 811 F.3d 801, 809 (6th

Cir. 2016). “In reviewing a district court’s application of the Sentencing Guidelines, this Court

will ‘accept the findings of fact of the district court unless they are clearly erroneous and [will]

give due deference to the district court’s application of the Guidelines to the facts.’” United States



                                                  4
                                           No. 17-3018


v. Moon, 513 F.3d 527, 539–40 (6th Cir. 2008) (quoting United States v. Williams, 355 F.3d 893,

897–98 (6th Cir. 2003)). “We review a district court’s legal conclusions regarding the Sentencing

Guidelines de novo.” Id. at 540.

                                            Analysis

       This case presents five issues: (1) whether Turner was an organizer or leader of the drug

conspiracy; (2) whether Turner obstructed justice by plotting against the informant; (3) whether

Turner accepted responsibility for his crimes; (4) whether the district court improperly based its

sentencing decision, at least in part, on Turner’s refusal to identify his heroin suppliers; and

(5) whether Turner qualified as a career offender. We address each issue in turn.

I.     Organizer or Leader Enhancement

       Guideline § 3B1.1(a) applies a four-point offense-level increase if the defendant was “an

organizer or leader of a criminal activity that involved five or more participants or was otherwise

extensive[.]” In determining whether the defendant was an “organizer or leader,” the district court

should consider any relevant circumstances, including

       the exercise of decision making authority, the nature of participation in the
       commission of the offense, the recruitment of accomplices, the claimed right to a
       larger share of the fruits of the crime, the degree of participation in planning or
       organizing the offense, the nature and scope of the illegal activity, and the degree
       of control and authority exercised over others.

U.S.S.G. § 3B1.1 App. Note 4. “A district court need not find each factor in order to warrant an

enhancement.” United States v. Castilla-Lugo, 699 F.3d 454, 460 (6th Cir. 2012).

       However, to qualify for the leadership enhancement, the defendant must have exerted

control over at least one other participant in the criminal scheme. See U.S.S.G. § 3B1.1 App. Note

2. Consequently, the enhancement can be applied “where a defendant has ‘exerted control over at

least one individual within a criminal organization,’ but not where the defendant has ‘merely


                                                5
                                            No. 17-3018


exercised control over the property, assets or activities of the enterprise.’” United States v.

Swanberg, 370 F.3d 622, 629 (6th Cir. 2004) (quoting United States v. Gort-DiDonato, 109 F.3d

318, 321 (6th Cir. 1997)).

       The dispute in this case centers on whether Turner exerted control over at least one of his

accomplices. The district court ruled that he had, noting that Turner played a central role in the

conspiracy, recruited and vetted accomplices, had assistance from an accomplice in keeping a drug

ledger, and, while in jail, asked relatives to collect his drug debts. Turner, by contrast, denies

controlling any of his accomplices. He argues that they worked together collaboratively.

       There was more than enough evidence to support the district court’s decision, especially in

light of the “due deference” given to the district court’s application of the guidelines to the facts.

Moon, 513 F.3d at 539–40. It is uncontested that Turner played a central role in the drug

conspiracy and was critical to its success. And contrary to Turner’s suggestion, there was

substantial evidence that he controlled at least one of his accomplices. For example, he helped

initiate the conspiracy; he put his customers on regular, weekly payment plans; he recruited and

vetted accomplices; and he instructed an accomplice to update his drug ledger. In addition, an FBI

agent testified at sentencing that, according to a co-conspirator, Turner sometimes told dealers

what prices to set for the drugs. Taken together, these considerations are sufficient to show control.

See, e.g., United States v. Sierra-Villegas, 774 F.3d 1093, 1101 (6th Cir. 2014) (noting that a

defendant’s role in initiating a conspiracy is “significant” in assessing the degree of control and

authority exercised over others); United States v. Ugochukwu, 538 F. App’x 674, 681 (6th Cir.

2013) (finding control where, among other factors, the defendant “controlled the means and price

of supply” of the drugs); United States v. Fenderson, 354 F. App’x 236, 242 (6th Cir. 2009) (same

result where accomplices were “required to sell the drugs to their end users, then return and pay



                                                  6
                                           No. 17-3018


[the defendant] a premium for the ‘fronting’ that had occurred”); United States v. Hopson,

134 F. App’x 781, 796 (6th Cir. 2004) (noting that the control inquiry takes into account whether

the defendant “recruited his accomplice[s]” or “exercised authority” over them); United States v.

Schultz, 14 F.3d 1093, 1099 (6th Cir. 1994) (finding control where, among other factors, the

defendant played a large role “[o]rganizing and coordinating” the drug conspiracy).

       In essence, Turner asks this Court to find that his accomplices were more akin to

independent contractors than employees. However, the district court rejected that argument. It

found that Turner “didn’t sit passively there and shrug his shoulders . . . as though somehow [his

accomplices] are purely independent contractors without any obligation or responsibility to him.

That’s how I interpret the record.” (R. 109, sentencing tr., PageID# 822.) There was ample

support for that conclusion, and we will not second guess it. See Ugochukwu, 538 F. App’x at 682

(“We defer to the district court’s decision because the court was in the best position, after hearing

the evidence, to determine whether the defendant qualified for the four-level [leadership]

adjustment.”).

II.    Obstruction of Justice Enhancement

       Guideline § 3C1.1 applies a two-point offense-level increase for obstruction of justice.

Specifically, it provides that

       [i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or
       impede, the administration of justice with respect to the investigation, prosecution,
       or sentencing of the instant offense of conviction, and (2) the obstructive conduct
       related to (A) the defendant’s offense of conviction and any relevant conduct; or
       (B) a closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. The district court applied the enhancement here, citing Turner’s plot against

the informant.




                                                 7
                                            No. 17-3018


       This was error. It is undisputed that Turner was not attempting to influence the informant;

he sought only retaliation. Indeed, Turner ensured that the informant would not be harmed—and

would not learn of the plot against him—until after Turner’s sentencing, at which point the plot

could not possibly have affected the criminal proceeding. Consequently, Turner did not obstruct

justice “with respect to the investigation, prosecution, or sentencing of the instant offense of

conviction,” as required by the guideline. Id. The following excerpt from an Eighth Circuit case,

United States v. Galaviz, is persuasive:

       As relevant here, § 3C1.1 provides that a defendant’s offense level should be
       enhanced two levels if he “willfully . . . attempted to obstruct . . . the administration
       of justice with respect to . . . the sentencing of the instant offense of conviction.”
       The district court found on a sufficient record that while in prison, after pleading
       guilty, Mr. Galaviz engaged in a conspiracy to murder Ubeldo Lopez–Gonzalez,
       who was a confidential informant in the case. The district court also found, again
       on a sufficient record, that Mr. Galaviz’s motive for entering the conspiracy was to
       retaliate against Mr. Lopez for his cooperation with the government. But because
       Mr. Galaviz had already pleaded guilty, he could not have intended to obstruct
       justice “with respect to the instant offense” by plotting to kill Mr. Lopez unless he
       thought that Mr. Lopez was going to testify against him at sentencing, and that
       indeed was the government’s theory in the first brief that it filed in this court. The
       infirmity of this position is that the record will not support a finding that Mr.
       Galaviz had reason to think that Mr. Lopez would be a witness against him at
       sentencing.

687 F.3d 1042, 1043 (8th Cir. 2012) (alterations in original). In a later case, the Eighth Circuit

was more succinct: “When there is no evidence that retaliation would impede the progress of the

defendant’s case in any way, the enhancement pursuant to § 3C1.1 cannot be applied.” United

States v. Parker, 871 F.3d 590, 607 (8th Cir. 2017) (quotation marks, citation, and alteration

omitted).

       In an attempt to overcome the guideline’s plain language, the government points to

Application Note 4, which provides a long list of examples of covered conduct. The application


                                                  8
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note specifically mentions threatening, intimidating, or unlawfully influencing a witness or juror;

committing or suborning perjury; producing false documents during a judicial proceeding;

destroying or concealing evidence; attempting to escape from custody before trial or sentencing;

providing the court with false information; failing to comply with a restraining order; and other

conduct. U.S.S.G. § 3C1.1 App. Note 4(A)-(H), (J). It does not mention purely retaliatory acts

against witnesses. Nonetheless, the application note does state that the guideline applies to “other

conduct prohibited by obstruction of justice provisions under Title 18, United States Code (e.g.,

18 U.S.C. §§ 1510, 1511)[.]” § 3C1.1 App. Note 4(I). One such provision is 18 U.S.C. § 1513,

which punishes anyone who “kills or attempts to kill another person with intent to retaliate against

any person” for the latter individual’s role in a criminal investigation or proceeding. 18 U.S.C.

§ 1513(a). Therefore, Application Note 4(I) would, it appears, apply the obstruction guideline to

purely retaliatory acts against witnesses. This Court employed such reasoning in an unpublished

case in 1993, United States v. Vassar, 9 F.3d 110 (table), 1993 WL 406797, at *3 (6th Cir. 1993),

applying the obstruction enhancement to a retaliatory plot against an informant. Other circuits

have reached similar conclusions. See United States v. Morrison, 218 F. App’x 933, 947 (11th

Cir. 2007); United States v. Sealed Deft. 1, 175 F.3d 1009 (table), 1999 WL 177253, at *1 (2d Cir.

1999); United States v. Lagasse, 87 F.3d 18, 24 (1st Cir. 1996); United States v. Downing, 60 F.3d

837 (table), 1995 WL 410155, at *2 (10th Cir. 1995); United States v. Cotts, 14 F.3d 300, 308 (7th

Cir. 1994).2




       2
          Some of these cases relied on prior versions of the application note, which was
substantively identical to the present version. Compare U.S.S.G. § 3C1.1 App. Note 3(i) (1995)
(clarifying that the obstruction guideline applies to “conduct prohibited by 18 U.S.C. [§§] 1501–
1516”), with U.S.S.G. § 3C1.1 App. Note 4(I) (1997–2017) (clarifying that the obstruction
guideline applies to “other conduct prohibited by obstruction of justice provisions under Title 18,
United States Code (e.g., 18 U.S.C. §§ 1510, 1511)”).
                                                 9
                                           No. 17-3018


       However, we do not follow Vassar; that case, and every out-of-circuit case cited above,

interpreted the pre-November 2006 version of the obstruction guideline. In that version, the

guideline applied if the defendant obstructed justice “during the course of” the investigation,

prosecution, or sentencing of the defendant’s criminal case. U.S.S.G. § 3C1.1 (2005). Such

language arguably covered conduct, like purely retaliatory acts against witnesses, that obstructs

justice in a general sense. Because the guideline was ambiguous, the Vassar court appropriately

consulted the Guidelines commentary. That commentary—specifically, Application Note 4(I)—

confirmed that purely retaliatory acts against witnesses were covered.

       The current version of the obstruction guideline, by contrast, contains different language.

Guidelines Amendment 693, effective November 1, 2006, updated the guideline by replacing the

phrase “during the course of” with the phrase “with respect to.” See U.S.S.G. App. C Supp.,

Amend. 693. Consequently, the guideline now applies where the defendant willfully obstructed

“the administration of justice with respect to the investigation, prosecution, or sentencing of the

instant offense of conviction.” Id. at § 3C1.1 (emphasis added). This language is unambiguous:

it indicates that obstructing justice in a general sense no longer triggers the enhancement because

the defendant must have intended to obstruct his criminal proceeding. See Galaviz, 687 F.3d at

1043 (holding that “a general retaliatory motive” is insufficient to trigger the enhancement unless

there is a showing “that the plot was intended to obstruct justice on the instant offense of

conviction”).

       Accordingly, there is a conflict between the guideline itself, which clearly indicates that it

does not apply to purely retaliatory conduct against witnesses, and Application Note 4(I), which

suggests that such conduct remains covered. This conflict must be resolved in favor of the

guideline. See Stinson v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines



                                                10
                                            No. 17-3018


Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or

a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”).

Consequently, Turner’s retaliatory plot against the informant should not have triggered the

obstruction guideline.

III.   Reduction for Acceptance of Responsibility

       The district court declined to apply a three-point offense-level reduction under guideline

§ 3E1.1 for acceptance of responsibility, believing the reduction unwarranted in light of its

obstruction finding. See U.S.S.G. § 3E1.1 App. Note 4 (“Conduct resulting in an enhancement

under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that

the defendant has not accepted responsibility for his criminal conduct.”). Given our determination

that the obstruction guideline should not have been applied, the district court’s reasoning was

erroneous. Nonetheless, the district court’s conclusion was correct: Turner was not entitled to a

reduction for acceptance of responsibility. Specifically, Turner continues to insist that he was not

an organizer or leader of the drug-distribution enterprise, and the district court found that he

arranged a murder-for-hire plot from jail.        Therefore, Turner did not clearly demonstrate

acceptance of responsibility. See U.S.S.G. § 3E1.1 App. Note 1(A)–(B) (stating that application

of an acceptance of responsibility reduction depends, in part, on whether the defendant has

(1) “truthfully admitt[ed] the conduct comprising the offense(s) of conviction, and truthfully

admitt[ed] or not falsely den[ied] any relevant conduct for which the defendant is accountable

under § 1B1.3 (Relevant Conduct),” and has (2) “voluntarily terminat[ed] or withdraw[n] from

criminal conduct or associations”).




                                                 11
                                             No. 17-3018


IV.    Turner’s Failure to Name His Heroin Suppliers

       Turner argues that the district court based his sentence, at least in part, on his failure to

identify his heroin suppliers. According to Turner, this constituted a violation of his Fifth

Amendment privilege against self-incrimination because he was never offered immunity in

exchange for this cooperation. Turner notes that the district court initially stated that it was “deeply

troubled by [Turner’s] refusal to disclose his sources” and that it would consider Turner’s failure

to cooperate when “determining what sentence to impose.” (R. 113, sentencing tr., PageID# 963–

64.)

       However, as the government points out in its opposition brief, the district court changed its

mind. Despite its initial inclination to consider Turner’s failure to cooperate, the district court

ultimately accepted Turner’s argument that doing so would be improper. (R. 109, sentencing tr.,

PageID# 857–58 (“Okay, then I will disregard that. If it’s not proper for me to take those into

consideration, I will not. . . . [T]he remarks I made and the feelings I have of that regard, like other

feelings I often have in other circumstances, one way or the other will play no role in my decision.

And I assure you of that[.]”).) The district court then repeatedly guaranteed that it would not base

Turner’s sentence, in any way, on his failure to identify his heroin suppliers. (Id. at 891, 893.)

       In his reply brief, Turner argues that the district court’s guarantees were ambiguous.

Turner points out that, at one point, the district court promised not to consider “those

considerations and concerns,” but did not explicitly specify which considerations it was referring

to. (R. 109, sentencing tr., at PageID# 891.) This argument fails because it is crystal clear from

the context of the district judge’s remarks that he was referring to the “considerations and

concerns” surrounding Turner’s failure to identify his heroin suppliers. There is no other plausible




                                                  12
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interpretation of the transcript. Indeed, Turner does not even attempt to provide an alternative

reading.

V.     Career Offender Designation

       Under guideline § 4B1.1(a), a defendant is deemed a career offender if, among other

requirements, the defendant “has at least two prior felony convictions of either a crime of violence

or a controlled substance offense.” In this case, the district court determined that Turner qualified

as a career offender due to his prior convictions for Robbery under Ohio Rev. Code § 2911.02,

and Felonious Assault under Mich. Comp. Laws § 750.82. The district court’s analysis of Turner’s

Ohio Robbery conviction was based on this Court’s unpublished decision in United States v.

Mansur, 375 F. App’x 458, 463–64 (6th Cir. 2010), holding that Ohio Robbery constitutes a “crime

of violence.” As a result of his career offender designation, Turner’s criminal history category

was automatically set to VI, the highest rating. See U.S.S.G. § 4B1.1(b). Otherwise, it would have

been at category III. (See R. 101, order, PageID# 675.)

       While Turner’s appeal was pending, this Court decided Yates, a published opinion

overruling Mansur. In Yates, this Court held that Ohio Robbery is not a “crime of violence,” and

therefore cannot trigger the career offender provision. 866 F.3d 727–34. In light of Yates, the

government concedes that Turner’s career offender designation was erroneous. (Gov’t Br. at 5–

6.) We agree that Yates is controlling, and as a result, Turner’s career offender designation was

erroneous.

VI.    The District Court’s Errors Were Harmless

       As discussed above, the district court erred by applying the obstruction of justice

enhancement and by applying the career offender enhancement. However, where a district court

errs in its guidelines calculations, remand is appropriate only if the error affected the defendant’s



                                                 13
                                            No. 17-3018


guidelines range. United States v. Gill, 348 F.3d 147, 155 (6th Cir. 2003) (“In order to demonstrate

that the trial court’s error was not harmless, the defendant must show that the trial court could have

found, by a preponderance of evidence, that a different guideline range was appropriate.”). In the

instant case, the errors did not. Without the obstruction of justice enhancement, Turner’s offense

level would have been 40. Without the career offender enhancement, Turner’s criminal history

rating would have been at least III. Accordingly, his guidelines range would have been 360 months

to life imprisonment, see U.S.S.G. § 5A (Sentencing Table), which is the same guidelines range

used by the district court at sentencing. Therefore, the district court’s errors were harmless.3

                                          CONCLUSION

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




       3
          Although Turner argues that his career offender status will impact his designation within
the Bureau of Prisons, that issue relates to the service of his sentence and does not entitle him to a
remand. See United States v. Wales, 68 F. App’x 575, 587 n.11 (6th Cir. 2003) (“As for
[defendant’s] argument regarding BOP’s consideration of his PSR, the Court does not believe that
this consideration mandates that he receive a new sentencing hearing.”).
                                                 14
