               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0043n.06

                                       Case No. 13-1132                               FILED
                                                                                Jan 17, 2014
                                                                            DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE WESTERN DISTRICT OF
CHARLES LEE CANNON,                                )       MICHIGAN
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )


       BEFORE: SUTTON, McKEAGUE and WHITE, Circuit Judges.


       SUTTON, Circuit Judge. Charles Cannon challenges his conviction and sentence on an

assortment of grounds. We affirm.


       Cannon and Carlos Watts, both cocaine dealers, met in the summer of 2010 while jailed

in a Michigan prison. They became friends and often discussed drug dealing practices. Before

long, they agreed to sell cocaine together after their release, with Cannon agreeing to supply the

drugs, Watts the customers.


       When both men were released from jail later that summer, they set to work in Battle

Creek, Michigan. The drug-distribution scheme contained all of the usual features, so usual that
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United States v. Cannon
the operation bordered on the cliche. Cannon and Watts set up drug houses where they stored,

prepared and sold the cocaine. They recruited employees (mostly prostitutes) to help them make

sales.   And to protect themselves and their stash of drugs, they carried guns and hired a

bodyguard.


         After police uncovered the venture, federal prosecutors charged Cannon and Watts with

drug and gun offenses. Watts accepted a plea offer, but Cannon insisted on going to trial. Watts

and other participants in the conspiracy testified against Cannon. So did Cannon’s estranged

wife, apparently paying no heed to a letter from Cannon that seemed to urge her to commit

perjury on his behalf. A jury convicted Cannon of conspiracy to possess and to distribute

cocaine base, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), 846, and possession of a firearm by a

felon, 18 U.S.C. § 922(g).


         The district court applied a series of enhancements to Cannon’s sentence. It concluded

among other things that Cannon willfully attempted to obstruct justice in his prosecution,

U.S.S.G. § 3C1.1, that he “maintained a premises for the purpose of manufacturing or

distributing a controlled substance,” id. § 2D1.1(b)(12), and that he “was a manager or

supervisor” in a “criminal activity [that] involved five or more participants,” id. § 3B1.1(b).

Together these enhancements yielded a guidelines range of 292–365 months, and the court

sentenced Cannon to 328 months, a little more than 27 years.


         On appeal, Cannon challenges his conviction and sentence on several grounds: (1) the

district court erred in admitting the letter to his estranged wife; (2) the court should not have

applied the (a) obstruction-of-justice, (b) maintaining-a-premises and (c) manager/supervisor

sentencing enhancements; and (3) the district court imposed an unreasonable sentence.


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       1. Admission of the letter. An evidentiary privilege shields confidential communications

between spouses, but the privilege does not apply to communications between “permanently

separated” individuals. United States v. Porter, 986 F.2d 1014, 1019 (6th Cir. 1993). Invoking

the permanent-separation exception, the trial court permitted the prosecution to introduce a letter

Cannon sent his wife Shandin Chase while awaiting trial in June 2012. The letter discusses

Cannon’s family, drug habit and impending prosecution. Cannon challenges the district court’s

conclusion that Cannon and Chase had permanently separated by the time he sent the letter. In

the absence of an abuse of discretion, we must respect the district court’s ruling. Id.


       We see no error, let alone reversible error, in the district court’s decision. Cannon’s

marriage with Chase was tumultuous; the couple had separated approximately ten times. In May

2012, they got into a fight. Chase hit her husband with her fist and scratched his neck, leaving a

three-inch gash. After the incident, Chase separated from Cannon for the last time. Chase

testified that she wanted to get “out of the drug life,” that she had no interest in saving the

marriage, that she did not wish to speak to Cannon and that she intended to file for divorce. R.

93 at 53, 123. Chase also agreed that after May 2012 she had “permanently separated” from

Cannon. R. 93 at 53, 89. We have upheld a permanent-separation finding on the strength of

much less. See Porter, 986 F.2d at 1018 (affirming permanent-separation decision where the

wife testified that she “moved out” after the husband failed to visit her in the hospital, and the

couple had been apart for less than two weeks when the husband made the relevant

communication).


       Cannon’s contrary arguments do not persuade. Past is precedent, Cannon begins: He got

back together with Chase after each of the nine preceding separations, suggesting that the tenth

would be no different. But nothing in the record suggests that any of the preceding separations

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resulted from a violent encounter between the spouses or prompted Chase to end the marriage.

So far as the record shows, the tenth time was different. Cannon persists that after the separation

he sent Chase money for their children. But divorced spouses, indeed most especially divorced

spouses, regularly pay child support.


       2.a. Obstruction-of-justice enhancement.         The guidelines enhance the range of a

defendant who willfully attempts to obstruct justice at his trial. U.S.S.G. § 3C1.1. The district

court applied this enhancement to Cannon because, in the just-mentioned letter to his wife, he

wrote: “[M]y lawyers will be sending some paper work also. [B]ecause you know that any

drugs I bought over the past 7 years we been together was for me to do up my nose or smoke out

a pipe. I never bought any drugs for the purpose to sell. . . . I need you to come to court and tell

the truth.” R. 86-1. The court construed the statement as urging Chase to testify falsely that

Cannon never dealt drugs. Cannon concedes that urging a witness to commit perjury triggers the

enhancement, but he denies that he encouraged his wife to commit perjury. We have no license

to ignore this factual finding unless the court committed clear error in making it. See United

States v. Orlando, 363 F.3d 596, 600 (6th Cir. 2004).


       The district court’s ruling passes clear-error review. Cannon’s claim that he bought drugs

only to use them and never to sell them was manifestly false—as Chase, who had seen Cannon

deal drugs, well knew. Why would a defendant tell a witness something that both of them knew

to be false? One explanation, an entirely plausible one here, is that he wanted her to repeat the

lie in court. More, the lie appears sandwiched between a reference to paperwork from the

defense attorney and a request that Chase testify. Context bolsters the conclusion that Cannon

lied not just because he liked lying, but because he wanted Chase to incorporate the lie into her

testimony. Still more, the quoted passage comes after a discussion of Cannon and Chase’s life

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United States v. Cannon
together, which in context reads like an effort to motivate Chase to help Cannon out. Beyond

that, Chase testified that she interpreted the letter as an invitation to lie. The attempt to suborn

perjury may have been subtle, but the obstruction enhancement covers subtle efforts no less than

brazen ones. See United States v. Bingham, 81 F.3d 617, 632 (6th Cir. 1996) (upholding

enhancement where the defendant attempted “indirectly, and perhaps even somewhat

ambiguously, to have” his girlfriend lie under oath for him).


       Cannon responds by highlighting the sentence “I need you to come to court and tell the

truth.” It is conceivable that Cannon meant “tell the truth” literally rather than figuratively.

Anything is possible. But it does not seem likely, and most importantly the district court

permissibly could find it unlikely, given that the “truth” Cannon wanted her to convey—that he

possessed drugs only for personal consumption—was a patent falsity.              On this record, the

existence of this alternative interpretation of the letter does not show clear error.


       b. Maintaining-a-premises enhancement. “If the defendant maintained a premises for

the purpose of manufacturing or distributing a controlled substance,” the guidelines enhance the

sentencing range. U.S.S.G. § 2D1.1(b)(12). Because Cannon and Watts used various drug

addicts’ houses to store and sell drugs, the district court applied the enhancement. Cannon does

not dispute the district court’s decision that he used these houses “for the purpose of

manufacturing or distributing a controlled substance”; he challenges the court’s conclusion that

he “maintained” the houses.


       The district court got it right.       “Among the factors the court should consider in

determining whether the defendant ‘maintained’ the premises are (A) whether the defendant held

a possessory interest in (e.g., owned or rented) the premises and (B) the extent to which the


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United States v. Cannon
defendant controlled access to, or activities at, the premises.” U.S.S.G. § 2D.1.1 cmt. n.17; see

also Stinson v. United States, 508 U.S. 36 (1993) (treating Guidelines commentary as binding).

Cannon and Watts rented the relevant houses from drug addicts, often paying them with cocaine.

Cannon and Watts also controlled access to and activities at the houses. They often would post a

bodyguard at the door, and they used guns to protect the premises.         All of these factors

considered, Cannon “maintained” the relevant premises.


       Cannon replies that, because he never formally leased any of the houses in question, he

did not “rent” the premises. But the maintaining-a-premises enhancement does not come with a

Statute of Frauds defense. In ordinary speech, an individual who pays another person for the use

of a house has “rented” the house, whether he signs a contract to that effect or not, whether he

pays with a check or not.      Elevating a signed lease to a prerequisite for applying this

enhancement also makes little sense. Drug kingpins are not known for signing leases for their

drug houses. The argument at any rate does not matter. Even if we ignore the absence of a

formal lease or the method of payment, Cannon’s control over the houses suffices to trigger the

enhancement.


       Cannon had a better argument, one he neither raised in the district court nor raised here.

He finished committing his offenses in September 2010.          But the maintaining-a-premises

enhancement was adopted only in October and took effect only in November of that year. See

U.S.S.G. supp. app. C, amend. 748; 75 Fed. Reg. 66188 (Oct. 27, 2010). And the Ex Post Facto

Clause prevents a court from enhancing a defendant’s sentence on account of guidelines

“promulgated after [the] defendant committed his criminal acts.” Peugh v. United States, 133 S.

Ct. 2072, 2078 (2013). Cannon has forfeited this argument by failing to present it. Even if

Cannon had pressed this argument, moreover, the result of this case would remain the same. The

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district court said with clarity that it would impose the same sentence even if the maintaining-a-

premises enhancement did not apply. Because any mistake “did not affect the district court’s

selection of the sentence imposed,” it was harmless. Williams v. United States, 503 U.S. 193,

203 (1992).


       c. Manager/supervisor enhancement. The guidelines call for an enhancement “[i]f the

defendant was a manager or supervisor . . . and the criminal activity involved five or more

participants.” U.S.S.G. § 3B1.1(b). The district court concluded that Cannon’s role in the

conspiracy justified the enhancement. Cannon does not deny that the conspiracy involved at

least five participants; he denies that he managed or supervised them. Although as a general rule

we give fresh review to legal conclusions, we review the court’s application of this fact-intensive

guideline with deference. United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013).


       The record amply shows that Cannon managed or supervised at least some of the drug

venture’s employees. Cannon for starters co-founded the drug dealing partnership with Watts.

Responsible for the partnership’s supply of cocaine, he retained a leading role in the partnership

even after its founding. He directed prostitutes to sell the partnership’s cocaine. He directed one

employee to buy ammunition. And on at least one occasion he directed an employee to hide

cocaine from nearby police officers. All of this goes well beyond what it takes to activate the

manager/supervisor enhancement. See United States v. Munoz, 233 F.3d 410, 416 (6th Cir.

2000) (holding that coordinating a single delivery of drugs through a courier suffices).


       Cannon insists that he did not “control” any of the employees. The claim as an initial

flaw contradicts evidence presented at trial. But it suffers from a greater problem: It conflates

the enhancement for “a manager or supervisor” with the more severe enhancement for “an


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organizer or leader.” U.S.S.G. § 3B1.1. Control over subordinates is necessary to trigger the

organizer/leader enhancement, and is one of the factors that distinguishes an organizer or leader

from a manager or supervisor. United States v. Mitchell, 295 F. App’x 799, 802 (6th Cir. 2008);

see U.S.S.G. § 3B1.1 cmt. n. 4 (“In distinguishing a leadership and organizational role from one

of mere management or supervision, . . . the court should consider . . . the degree of control and

authority exercised over others.”). The court permissibly applied the enhancement.


       3. Substantive reasonableness. We review the length of Cannon’s sentence, 328 months

in prison, for its reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). The sentence

must stand unless the district court abused its discretion. Id.


       Cannon complains that, while the district court sentenced him to 328 months after his

trial, the court sentenced his fellow conspirator Watts to 156 months after Watts pled guilty and

cooperated with the government. He contends that the court slighted 18 U.S.C. § 3553(a)(6),

which requires sentencers to consider “the need to avoid unwarranted sentence disparities.” But

we have held time and again that § 3553(a)(6) refers to “national disparities,” not to any

disparity between the defendant and a coconspirator. See United States v. Conatser, 514 F.3d

508, 521 (6th Cir. 2008). Cannon does not allege a disparity between his sentence and the

sentences of similarly situated defendants across the country.


       Cannon persists that, even apart from § 3553(a)(6), the district court had to account for

the divergence between his sentence and Watts’s sentence. But a district court does not abuse its

discretion by tolerating a disparity between a conspirator who accepts a plea bargain (and

cooperates with the government) and a fellow conspirator who insists on trial. See id. at 522.




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The whole point of the plea bargaining system is to treat a defendant more leniently if he pleads

guilty.


          For these reasons, we affirm.




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