                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 16a0044n.06

                                Nos. 14-5242, 14-5216 & 14-5816


                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                               Jan 25, 2016
                                                                               DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )
                                                                 ON APPEAL FROM THE
                                                         )
                                                                 UNITED STATES DISTRICT
RODRIGUEZ BLACKWELL,                                     )
                                                                 COURT FOR THE EASTERN
ROLANDO BLACKWELL, and                                   )
                                                                 DISTRICT OF KENTUCKY
RODERICK BLACKWELL,                                      )
                                                         )
       Defendants-Appellants.                            )




BEFORE:        BATCHELDER, GIBBONS, and WHITE, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. This is a combined appeal by Rodriguez,

Rolando, and Roderick Blackwell, three brothers who were convicted on charges arising from

their involvement in a drug-dealing conspiracy. Rodriguez and Rolando pleaded guilty, and

Roderick was convicted by a jury. The Government concedes that Roderick’s case should be

remanded to the district court for reconsideration of his sentence under Amendment 782 of the

Sentencing Guidelines, and we REMAND to permit the district court to consider Roderick’s

request for reduction of his sentence. Finding no merit to any of the other issues raised by the

brothers, we AFFIRM the disposition of the district court in all other respects.

                                                 I.

       The investigation of this case began in 2012 when an informant told the FBI that the

Blackwell brothers were trafficking cocaine in Covington, Kentucky. During the months that
Nos. 14-5242, 14-5216 & 14-5816
United States v. Rodriguez Blackwell, Rolando Blackwell & Roderick Blackwell

followed, law enforcement officers conducted extensive physical and electronic surveillance on

the Blackwell brothers and set up numerous controlled purchases from the brothers and their

gang.    Using information obtained through an informant, the officers were able to track

Rolando’s many cell phones and, after obtaining warrants, to intercept his cell phone calls and

text messages. Gradually, the officers pieced together the identities of the gang members and the

modus operandi of the group.            By July 10, 2013, law enforcement had gathered enough

information to procure arrest warrants for thirteen individuals involved in the trafficking

conspiracy. Ten members of the gang were taken into custody on that day, among them the

Blackwell brothers.

        Each brother was indicted for conspiring,

        together and with others to knowingly and intentionally distribute and possess
        with intent to distribute 500 grams or more of a mixture or substance containing a
        detectable amount of cocaine, and 28 grams or more of a mixture or substance
        containing a detectable amount of cocaine base, both Schedule II controlled
        substances, violations of 21 U.S.C. § 841(a)(1), all in violation of 21 U.S.C.
        § 846.

Rodriguez pleaded guilty and was sentenced to imprisonment for one hundred forty-four months.

Rolando also pleaded guilty and was sentenced to imprisonment for two hundred seventy-six

months. Roderick opted for a jury trial. He was convicted and sentenced to imprisonment for

one hundred fourteen months. We address the claims raised by each brother in turn.

                                                      II.

        Rodriguez raises a single claim for review. He argues that his sentence is unreasonable

because it is above the minimum of the Guidelines range into which he fell. As the Supreme

Court has stated, “courts of appeals must review all sentences—whether inside, just outside, or

significantly outside the Guidelines range—under a deferential abuse-of-discretion standard.”

Gall v. United States, 552 U.S. 38, 41 (2007). This abuse-of-discretion review is in two parts.


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United States v. Rodriguez Blackwell, Rolando Blackwell & Roderick Blackwell

First, the reviewing court determines whether the sentence is procedurally unreasonable. Id. at

51. This includes the sentencing court’s “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the § 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.” Id. Second,

the reviewing court considers whether the sentence is substantively unreasonable. Id. This

review “will, of course, take into account the totality of the circumstances, including the extent

of any variance from the Guidelines range. If the sentence is within the Guidelines range, the

appellate court may, but is not required to, apply a presumption of reasonableness.” Id. Overall,

when applying an abuse-of-discretion standard, “[t]he fact that the appellate court might

reasonably have concluded that a different sentence was appropriate is insufficient to justify

reversal of the district court.” Id.

        As part of Rodriguez’s plea agreement, the Government agreed to advocate for the

minimum sentence within the applicable Guidelines range in exchange for Rodriguez’s dropping

all of his objections to the Presentence Report. The applicable Guidelines range was one

hundred thirty-five months to one hundred sixty-eight months. At sentencing, the Government

lived up to its commitment, but the district court sentenced Rodriguez to one hundred forty-four

months.

        With reference to the procedural reasonableness of the sentence, the record is clear that

the district court informed Rodriguez that it was not bound by the Government’s

recommendation of the minimum sentence. After being advised of Rodriguez’s agreement with

the Government, the judge said, “That’s not binding on me. . . . Do you understand that, sir?”

And Rodriguez responded, “Yes, sir.” After this explanation, Rodriguez reaffirmed his decision



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United States v. Rodriguez Blackwell, Rolando Blackwell & Roderick Blackwell

to waive his objections to the Presentence Report. There is no evidence that Rodriguez was

misinformed, manipulated, or subjected to any other type of procedural unfairness. The judge

adequately explained the situation, and Rodriguez unequivocally affirmed his understanding.

        With reference to the substantive reasonableness of disregarding the recommendation, we

begin with a presumption of reasonableness because the final sentence was well within the

applicable Guidelines range.         Rodriguez fails to rebut this presumption.     In determining

Rodriguez’s sentence, the judge considered Rodriguez’s communication with other members of

the conspiracy, the nature of the sentences imposed on other members of the conspiracy, the

nature of Rodriguez’s prior criminal history, and the general nature of the crime itself. Although

Rodriguez disagrees with the way in which the district court interpreted and weighed the

evidence contained in the Presentence Report, he fails to provide any evidence that the district

court considered impermissible factors, rushed to judgment, failed to explain its position

adequately, or in any way abused its discretion. Thus, Rodriguez’s claim fails.

                                                     III.

        Rolando raises two claims for review. First, he asserts that the district court erred in

concluding that there was sufficient evidence to support his guilty plea, essentially, maintaining

that the district court failed to meet the requirements of Fed. R. Crim. P. 11(b)(3). But since

Rolando failed to object on the record, he bears “the burden to satisfy the plain-error rule and

. . . a reviewing court may consult the whole record when considering the effect of any error on

substantial rights.” United States v. Vonn, 535 U.S. 55, 59 (2002). “To withstand plain-error

review, the litigant must show (1) error, (2) that is plain, and (3) that affects substantial rights

and that (4) the error seriously affects the fairness, integrity, or public reputation of judicial




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United States v. Rodriguez Blackwell, Rolando Blackwell & Roderick Blackwell

proceedings.” United States v. Brock, 501 F.3d 762, 773 (6th Cir. 2007) (internal quotation

marks omitted).

        During Rolando’s rearraignment hearing, the district court explained the nature of the

proceeding, the nature of the defendant’s rights, and the nature and ramifications of a guilty plea.

The judge then specifically asked Rolando and his counsel, “Would you prefer for me to have

the prosecutor summarize the proof, or do you want me to just ask him what his role was?”

Defense counsel replied, “I think the latter would be best for my client, you asking him his role.”

Agreeing to this preference, the judge went through each count of the indictment, clarifying

various parts in the process. As to each count, Rolando admitted that he had committed the acts

charged. Rolando then confirmed that he understood the charges and pled guilty to every count.

        Rolando now argues that such a procedure is insufficient to support his guilty plea. But

his argument fails for two reasons. First, this court has held that “where the charge is a simple

one, and the defendant is competent to understand such a charge, the district court need only read

the indictment and give the defendant an opportunity to ask questions.” United States v. Van

Buren, 804 F.2d 888, 892 (6th Cir. 1986). This is precisely what occurred here. Rolando

understood the nature of the crimes with which he was charged, the judge read and explained the

indictment, and Rolando had the opportunity to ask questions. Nothing more was needed to

clarify the nature of the proceeding or support the guilty plea. Second, this court has held that

“‘[a]n attorney cannot agree in open court with a judge’s proposed course of conduct and then

charge the court with error in following that course.’”               United States v. Aparco-Centeno,

280 F.3d 1084, 1088 (6th Cir. 2002) (quoting United States v. Sloman, 909 F.2d 176, 182 (6th

Cir. 1990)). Since Rolando and his attorney both agreed to proceed in the manner proposed by




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United States v. Rodriguez Blackwell, Rolando Blackwell & Roderick Blackwell

the district court, they will not now be heard to assert on appeal that such a procedure was

inherently inadequate. For these reasons, Rolando’s first claim fails.

        Next, Rolando claims that the district court erred in its determination of the quantity of

drugs attributable to him as part of the conspiracy. “‘We review a district court’s drug quantity

determination for clear error. The government must prove the amount to be attributed to a

defendant by a preponderance of the evidence.’” United States v. Swanberg, 370 F.3d 622, 624–

25 (6th Cir. 2004) (quoting United States v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000)).

        At sentencing, the district court thoroughly discussed the numerous drug deals and

trafficking schemes in which Rolando was involved. The quantity eventually fixed upon by the

judge was consistent with the facts presented in the Presentence Report, was supported by

corroborating evidence of numerous phone conversations, was affirmed by the direct testimony

of the investigator, and was not contradicted by any evidence offered by Rolando. See United

States v. Hunt, 487 F.3d 347, 353 (6th Cir. 2007) (holding that corroborating testimony and lack

of contradictory testimony helped to establish sufficient indicia of reliability). Rolando has

failed to present any evidence that the district court committed a clear error that substantially

affected his rights. Thus, his second claim fails.

                                                     IV.

        Roderick raises four claims for review. His first claim is that the district court erred in its

instructions to the jury regarding the proper burden of proof for connecting Roderick with the

conspiracy. As the Government points out, the jury instructions used by the district court were

actually the pattern jury instructions used in the Sixth Circuit at the time of Roderick’s trial.

Since Roderick failed to object to the use of these instructions at trial, our review is for plain

error. Roderick challenges the suitability of the pattern instructions to the special circumstance



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Nos. 14-5242, 14-5216 & 14-5816
United States v. Rodriguez Blackwell, Rolando Blackwell & Roderick Blackwell

of this case, arguing that there were two separate drug conspiracies concerning different

substances. His failure to bring this alleged deficiency to the district court’s attention precludes a

finding of plain error where the court could not have been expected to discern the unidentified

deficiency in the instruction now challenged. We find no plain error here.

        Roderick’s second claim is that he is entitled to a hearing for a modification of his

sentence in light of the retroactive effect of 18 U.S.C. § 3582 as expressed in Amendment 782 to

the Sentencing Guidelines.         The Government agrees, as do we.            Amendment 782 to the

Sentencing Guidelines reduces the offense levels established by the Drug Tables, and it explicitly

states that it applies retroactively. See U.S. Sentencing Guidelines Manual § 1B1.10. Remand is

therefore appropriate.

        Roderick’s third claim is that he is entitled to an evidentiary hearing regarding the search

of his cell phone in light of Riley v. California, 134 S. Ct. 2473 (2014). In Riley, the Supreme

Court held that “a warrant is generally required before [a cell phone is subject to] a search, even

when a cell phone is seized incident to arrest.” Id. at 2493. The Court did not create a standard

of higher specificity for such warrants or a heightened showing of probable cause. Rather, the

Court stated, “Our answer to the question of what police must do before searching a cell phone

seized incident to an arrest is accordingly simple—get a warrant.” Id. at 2495.

        We fail to find anything in Riley that entitles Roderick to an evidentiary hearing

regarding the search of his cell phone. The record clearly indicates that the police obtained a

warrant before they searched Roderick’s cell phones and SIM cards. There is no indication that

these warrants were deficient, overbroad, or improperly executed in any way. Riley does not

provide a complex rubric by which cell phone warrants must be graded. It simply instructs the




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United States v. Rodriguez Blackwell, Rolando Blackwell & Roderick Blackwell

police to obtain a warrant before they search a cell phone that they have seized. That is precisely

what occurred in this case. Thus, Roderick’s third claim fails.

        Roderick’s fourth and final claim is that the district court clearly erred in denying his

motion for judgment of acquittal. “This Court reviews de novo the sufficiency of the evidence to

sustain a conviction.” United States v. Gunter, 551 F.3d 472, 482 (6th Cir. 2009) (citing United

States v. Gibson, 896 F.2d 206, 209 (6th Cir. 1990)). The legal question underlying a motion for

judgment of acquittal is “‘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.’”

United States v. Damra, 621 F.3d 474, 494 (6th Cir. 2010) (quoting United States v. Kuehne,

547 F.3d 667, 696 (6th Cir. 2008)).

        Roderick’s primary argument here is that there was no evidence put forward regarding

any quantity of crack cocaine and thus, the jury could not possibly find Roderick guilty of

conspiring to traffic crack cocaine. But proof of drug quantity is not an element that must be

proved to sustain a conviction under 21 U.S.C. § 846. “To sustain a conviction for conspiracy

under 21 U.S.C. § 846, the government must have proved: (1) an agreement to violate drug laws

. . . (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.”

United States v. Sliwo, 620 F.3d 630, 633 (6th Cir. 2010) (quoting United States v. Deitz,

577 F.3d 672, 677 (6th Cir. 2009)) (internal quotation marks omitted). During the trial, the

government provided evidence that Roderick participated in his brother’s drug trafficking

schemes, that he communicated frequently and knowledgeably with his brothers about various

drug deals, that he had knowledge of the various drugs and controlled substances being sold, and

that he manifested a consciousness of guilt when he called his friend from jail and instructed him

to wipe his cell phone clean. This evidence is sufficient to permit a rational fact finder to



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conclude that Roderick agreed to violate the drug laws, had knowledge of what was happening,

and willingly participated in the conspiracy. In light of the evidence presented at trial, we cannot

say that the district court erred by denying Roderick’s motion for judgment of acquittal. Thus,

Roderick’s fourth claim fails.

                                                      V.

        For the foregoing reasons, we REMAND Roderick’s sentence to the district court for

further proceedings consistent with this opinion. We AFFIRM the judgment of the district court

in all other respects as to all three appellants.




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