                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0459n.06

                                           No. 19-5953
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                          Aug 04, 2020
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk
                                                         )
 UNITED STATES OF AMERICA,                               )
                                                         )       ON APPEAL FROM THE
              Plaintiff-Appellee,                        )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE EASTERN
 v.                                                      )       DISTRICT OF KENTUCKY
                                                         )
 LAMAR THORNTON,                                         )
                                                         )       OPINION
              Defendant-Appellant.                       )
                                                         )


       Before: SUHRHEINRICH, GIBBONS, and BUSH, Circuit Judges.

       JOHN K. BUSH, Circuit Judge. Lamar Thornton was convicted of conspiracy to

distribute ten grams or more of heroin and carfentanyl, in violation of 21 U.S.C. § 846. He was

sentenced to 292 months’ imprisonment. He now appeals his conviction and sentence. For the

reasons stated below, we AFFIRM the judgment of the district court.

                                                 I.

       This is a case about the unlawful distribution of heroin and carfentanyl. The latter is a drug

designed for use as an elephant tranquilizer but also abused for human consumption, utilized on

its own or mixed with heroin. Defendant Lamar Thornton oversaw distribution of these drugs into

Lexington, Kentucky and the surrounding area.

       The story of Thornton’s arrest and prosecution centers around two main characters. The

first is Thomas Lehmann, who overdosed after consuming carfentanyl on January 8, 2017.

Authorities found Lehmann in his car, along with “all kinds of drugs”: 32 grams of what Lehmann
No. 19-5953, United States v. Thornton


believed to be heroin, 47 grams of methamphetamine, a half-ounce of marijuana, 32 Xanax pills,

and “some suboxones.” Lehmann was taken into custody and later pleaded guilty to conspiring to

distribute drugs with Thornton.

       Lehmann testified at trial that he first met Thornton at a Dollar Tree store in Lexington,

Kentucky. There, Thornton gave Lehmann two grams of heroin for free. (The typical user amount

for a single dose of heroin ranges from a tenth to a quarter of a gram.) At the time, Lehmann was

consuming between two and three grams of heroin a day. Thornton brought his associate Darmon

Shaw with him to the meeting. Thornton “directed” Lehmann to contact “Little Bro,” as Thornton

called Shaw, for any future transactions. Thereafter, Lehmann regularly purchased heroin from

Shaw both for himself and to sell to his customers. Lehmann also testified that after he was

incarcerated, he referred a customer, Brian Wylie, to Thornton for his heroin while Lehmann was

in prison. Thornton then called Wylie and invited him to Detroit so they “could start doing

business.”

       The second main character is Jerrod Doolin. In January 2017, Jared Sullivan, a special

agent with the Drug Enforcement Administration, received a call that one of Doolin’s drug

customers had overdosed. Agent Sullivan eventually obtained a warrant to search Doolin’s

residence, and upon executing the warrant, authorities found heroin, carfentanyl, and other items

indicative of drug trafficking. Doolin was not present during the search, but Jeff Ruggiero, a fellow

drug trafficker, was there. Sullivan used Ruggiero to locate Doolin. Eventually, Sullivan and

other officials performed a traffic stop of Doolin’s vehicle, where they found cash and drug

paraphernalia. While interviewing Doolin at the police station, Sullivan looked through Doolin’s

phone and found “text messages indicative of drug trafficking.” A number of those messages came

from an out-of-state phone number associated with Thornton. Doolin also identified Thornton,




                                                 2
No. 19-5953, United States v. Thornton


known to him by Thornton’s street name “Juice,” as his drug supplier. Like Lehmann, Doolin

purchased heroin and carfentanyl from Thornton but principally transacted with Shaw, whom

Doolin also knew as Little Bro. During a three-month period between the end of 2016 and January

2017, Doolin purchased 30 grams of heroin or carfentanyl from Thornton and Shaw once or twice

a week.

       Based on this information from Doolin, Sullivan applied for an authorization order to

obtain GPS location information for Thornton’s out-of-state phone number.            In his sworn

affirmation in support of the application, Sullivan stated that Doolin had identified the phone

number as belonging to Thornton, that Thornton had called Doolin from the number while Doolin

was being interviewed by police, that local police knew Juice to be Thornton’s street name, and

that Doolin had identified Thornton as Juice in a photo lineup. The magistrate judge agreed that

locating the cell phone would lead to evidence of controlled-substance offenses and granted

authorization to obtain the location information.

       According to the GPS data, the phone was consistently located at a residence in Detroit

that matched the address on Thornton’s driver’s license. Authorities obtained a search warrant for

the residence and an arrest warrant for Thornton, whom they took into custody after he left his

residence in a vehicle with Shaw on January 19, 2017. Sullivan confiscated four cell phones from

Thornton, one of which matched the cell phone number described in the authorization order. The

officers then placed Thornton and Shaw in the back of a police cruiser where, unbeknownst to the

arrestees, Sullivan was recording. The audio captured Thornton’s voice as he used Shaw’s cell

phone to call his girlfriend and instruct her to tell her father to “get the guns out of the house,”

“flush” items in a backpack, and contact T-Mobile to ask whether “they could remotely wipe his

phones.”




                                                    3
No. 19-5953, United States v. Thornton


       At Thornton’s residence, authorities found evidence that the house was being used to “cut

or process drugs.” Authorities also found a handgun, prescription pills, 99.6 grams of carfentanyl

and 114.7 grams of a mixture of carfentanyl, heroin, and allergy medication—altogether equal to

roughly 2,000 individual-use doses. In an interview following his arrest, Thornton admitted that

those drugs belonged to him.

       Before trial, Thornton filed a motion to suppress the evidence found at his residence and a

motion to dismiss the indictment based on an alleged violation of his Sixth Amendment right to a

speedy trial. The district court denied both motions.

       A jury convicted Thornton of conspiracy to distribute a mixture or substance containing

heroin and carfentanyl in violation of 21 U.S.C. § 846. Thornton’s Presentence Report calculated

his base offense level to be 30 for a drug offense involving the equivalent of more than 1,000 but

less than 3,000 kilograms of marijuana, with a two-level sentence enhancement for possession of

a firearm, four-level sentence enhancement for being the organizer or leader of a criminal activity

involving five or more participants, and a two-level sentence enhancement for obstruction of

justice. With Thornton’s adjusted offense level and his criminal history, the probation office

recommended a Guidelines range of 292–365 months. The district court agreed with the

Presentence Report and, after considering the factors under 18 U.S.C. § 3553(a), sentenced

Thornton to 292 months’ imprisonment.

                                                II.

       Thornton raises four arguments on appeal. First, he argues that the court order authorizing

collection of location data from his cell phone violated the Fourth Amendment. Second, he argues

that his Sixth Amendment right to a speedy trial was violated. Third, he argues that the government




                                                4
No. 19-5953, United States v. Thornton


did not proffer sufficient evidence to sustain his conviction. Fourth, he argues that his sentence

was procedurally and substantively unreasonable. We address each in turn.

                                                  A.

       Under the Fourth Amendment, “a search warrant may be issued only ‘upon probable cause

supported by an oath or affirmation, and particularly describing the place to be searched, and the

things to be seized.’” Peffer v. Stephens, 880 F.3d 256, 263 (6th Cir. 2018) (quoting U.S. Const.

amend. IV).

       Thornton contends that the court order authorizing the collection of location data from his

cell phone violated the Fourth Amendment because it was supported by an “affirmation,” rather

than an affidavit, and that affirmation did not establish probable cause. We review these claims

for plain error because Thornton failed to lodge these specific objections below. See United States

v. Buchanon, 72 F.3d 1217, 1226–27 (6th Cir. 1995). Under that standard, Thornton must show

(1) an “error,” (2) that was “clear or obvious,” (3) “affect[ed] [his] substantial rights,” and (4) that

“seriously affect[ed] the fairness, integrity or public reputation” of judicial proceedings. United

States v. Ramer, 883 F.3d 659, 677 (6th Cir. 2018) (quotations omitted).

       Thornton has not shown any error, let alone plain error. First, the government was free to

support its application for a warrant by an “affirmation,” rather than an affidavit. United States v.

Hang Le-Thy Tran, 433 F.3d 472, 482 (6th Cir. 2006) (“The Fourth Amendment does not require

that the basis for probable cause be established in a written affidavit; it merely requires that the

information be given by ‘Oath or affirmation’ before a judicial officer.”).

       Second, the affirmation established probable cause. In assessing whether there is probable

cause to issue a search warrant, the task of the issuing magistrate is to determine whether “there is

a ‘fair probability,’ given the totality of the circumstances, that contraband or evidence of a crime




                                                   5
No. 19-5953, United States v. Thornton


will be found in a particular place.” Id. (quoting United States v. Shields, 978 F.2d 943, 946 (6th

Cir. 1992)). To establish probable cause, a nexus must exist between the place to be searched and

the sought-after evidence. See United States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005). Here,

the affirmation stated that authorities stopped Jerrod Doolin, who had been identified as a heroin

dealer and who had a distribution amount of heroin in his possession. Doolin, in turn, identified

his supplier as an individual known to him as Juice. When questioned about a phone number in

his cell phone, Doolin identified the phone number in question as one that Juice had used for three

or four weeks. Local police knew Juice to be Thornton and had previously arrested him with 96

grams of heroin in his possession. Doolin confirmed that identification when he identified

Thornton as Juice in a photo lineup. And while Doolin was being interviewed, Thornton called

him and said that he had “150” for Doolin, which Doolin interpreted to mean that Thornton had

150 grams of heroin for him to sell. This evidence was more than sufficient to establish a nexus

between Thornton’s cellphone location data and drug trafficking offenses.

                                                 B.

       Thornton also claims that his Sixth Amendment right to a speedy trial was violated. The

Sixth Amendment guarantees in relevant part that “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. “The purpose of the speedy-

trial guarantee is to protect the accused against oppressive pre-trial incarceration, the anxiety and

concern due to unresolved criminal charges, and the risk that evidence will be lost or memories

diminished.” Brown v. Romanowski, 845 F.3d 703, 712 (6th Cir. 2017) (collecting cases). We

review “questions of law related to speedy-trial violations de novo and questions of fact for clear

error.” United States v. Sutton, 862 F.3d 547, 554 (6th Cir. 2017) (citing United States v. Carroll,

26 F.3d 1380, 1390 (6th Cir. 1994)).




                                                 6
No. 19-5953, United States v. Thornton


       In Barker v. Wingo, the Supreme Court established a four-factor test for determining

whether a defendant’s constitutional right to a speedy trial has been violated: (1) the length of the

delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to

the defendant. 407 U.S. 514, 530 (1972). “[N]one of the four factors [is] either a necessary or

sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are

related factors and must be considered together with such other circumstances as may be relevant.”

Id. at 533. And even if all four Barker factors are satisfied, a court is not required to conclude that

a defendant’s speedy trial right has been violated. Id.

       1.      Length of the Delay

       The first Barker factor—the length of the pre-trial delay—functions both as a triggering

mechanism and as a measure of the severity of the prejudice suffered by an accused. First, the

delay must be lengthy enough to warrant a constitutional analysis at all, “since, by definition, [a

defendant] cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact,

prosecuted his case with customary promptness.” Doggett v. United States, 505 U.S. 647, 651–52

(1992) (citing Barker, 407 U.S. at 530–31). Delays of over a year “generally” satisfy the

lengthiness requirement, thereby calling for the full Barker analysis. Id. at 652 n.1.

       Here, the delay extended well beyond one year, as Thornton was indicted on February 9,

2017, and his trial began on February 25, 2019. Accordingly, we proceed to the other factors.

       2.      The Reason for the Delay

       “In assessing the second factor, the reason for the delay, the court considers who is most at

fault—the government or the defendant.” Romanowski, 845 F.3d at 714. “A deliberate attempt to

delay the trial in order to hamper the defense should be weighted heavily against the government,”

while a “more neutral reason such as negligence or overcrowded courts should be weighted less




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No. 19-5953, United States v. Thornton


heavily but nevertheless should be considered since the ultimate responsibility for such

circumstances must rest with the government rather than with the defendant.” Barker, 407 U.S. at

531.

       Here, the overwhelming majority of delays were due to several pre-trial motions filed by

Thornton, and no delays were solely attributable to the United States. This factor thus weighs in

the government’s favor. See United States v. Taylor, 489 F. App’x 34, 47 (6th Cir. 2012) (noting

that, when a delay is caused by the actions of the defendant and his counsel by filing numerous

motions, this factor weighs in favor of concluding that a defendant’s speedy-trial rights were not

violated).

       3.      Thornton’s Assertion of his Right

       The third Barker factor, the defendant’s assertion of his right to a speedy trial, “is entitled

to strong evidentiary weight in determining whether the defendant is being deprived of the right.”

Barker, 407 U.S. at 531–32. “Although a defendant does not waive the right to a speedy trial by

failing to assert it, the degree to which the defendant has asserted the right is one of the factors to

be considered in the balance.” United States v. Brown, 169 F.3d 344, 350 (6th Cir. 1999) (citing

Barker, 407 U.S. at 531–32). This factor is a measure of how quickly the defendant asserted his

right to a speedy trial “in the context of the overall delay.” United States v. Watford, 468 F.3d

891, 907 (6th Cir. 2006).

       Thornton first referenced his right to a speedy trial on October 19, 2018, twenty-one

months after his indictment. In the interim, he filed a host of motions requiring delay of his trial.

Thornton’s belated assertion “‘cast[s] doubt on the sincerity of the demand’ and weigh[s] in favor

of the government.” Sutton, 862 F.3d at 561 (quoting United States v. Flowers, 476 F. App’x 55,

63 (6th Cir. 2012)).




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No. 19-5953, United States v. Thornton


       4.      Prejudice to Thornton

       The last Barker factor is concerned with the prejudice suffered by the defendant.

“A defendant must show that ‘substantial prejudice’ has resulted from the delay.” United States

v. Schreane, 331 F.3d 548, 557 (6th Cir. 2003) (quoting United States v. White, 985 F.2d 271, 276

(6th Cir. 1993)). “[P]rejudice[] should be assessed ‘in the light of’ three interests: (1) to prevent

oppressive pretrial incarceration, (2) to minimize anxiety and concern due to unresolved criminal

charges, and (3) to minimize damage to the defense.” Sutton, 862 F.3d at 561–62 (6th Cir. 2017)

(quoting Barker, 407 U.S. at 532). Damage to the defense is the “most serious,” Barker, 407 U.S.

at 532, and the defendant must demonstrate “how his defense was prejudiced with specificity,”

United States v. Young, 657 F.3d 408, 418 (6th Cir. 2011) (emphasis in original) (quoting United

States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000)). When the defendant fails to “articulate the

harm caused by delay, the reason for the delay (factor 2) will be used to determine whether the

defendant was presumptively prejudiced.” United States v. Williams, 753 F.3d 626, 634 (6th Cir.

2014) (quoting United States v. Mundt, 29 F.3d 233, 236 (6th Cir. 1994)).

       Thornton vaguely asserts that he has been unable to properly prepare for his defense given

his incarceration. But he provides no specifics. Because Thornton’s filing several motions was

the primary reason for the delay in his case, and there is no evidence that the government acted in

bad faith or negligently to cause the delay, Thornton’s Sixth Amendment claim must fail.

                                                 C.

        We next consider the sufficiency of the evidence to support Thornton’s conviction.

We apply de novo review. See United States v. Collins, 799 F.3d 554, 589 (6th Cir. 2015).

“A defendant challenging the sufficiency of the evidence ‘bears a very heavy burden.’” Id.

(quoting United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005)). In evaluating a sufficiency




                                                 9
No. 19-5953, United States v. Thornton


challenge, we determine “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). We “neither independently

weigh[] the evidence, nor judge[] the credibility of witnesses who testified at trial.” United States

v. Talley, 164 F.3d 989, 996 (6th Cir. 1999).

       Thornton was convicted of conspiring to distribute a controlled substance, in violation of

21 U.S.C. § 846. To establish a conspiracy under § 846, “the government must prove [1] the

existence of an agreement to violate the drug laws and [2] that each conspirator knew of, intended

to join, and participated in the conspiracy.” United States v. Volkman, 797 F.3d 377, 390 (6th Cir.

2015) (quoting United States v. Conrad, 507 F.3d 424, 432 (6th Cir. 2007)). “The connection

between a defendant and the conspiracy need only be slight,” id. (quoting United States v. Craft,

495 F.3d 259, 265 (6th Cir. 2007)), and a “conspiracy may be inferred from circumstantial

evidence which may reasonably be interpreted as participation in a common plan,” Conrad, 507

F.3d at 432.

       The government produced sufficient evidence to convict Thornton of violating 21 U.S.C.

§ 846. The evidence showed that Thornton developed business relationships with Jerrod Doolin

and Thomas Lehmann, who then distributed drugs in the Lexington area. Thornton then directed

them to work through another associate, Darmon Shaw, whom they knew as “Little Bro.” For

much of late 2016 and early 2017, Doolin purchased heroin several times a week from Shaw, who

had received the heroin from Thornton. Doolin then turned around and sold the drugs to his own

customers.

       Thornton also supplied heroin to Lehmann, who in turn sold to his own clients around

Lexington. Lehmann purchased his drugs from Shaw, as Thornton had directed. Thornton and




                                                 10
No. 19-5953, United States v. Thornton


Shaw “fronted” some of the drugs that they provided to Lehmann, meaning that Lehmann paid

only part of the purchase price when he obtained the drugs, and paid the balance back when he had

sold drugs to his own customers. Lehmann purchased heroin from Thornton, through Shaw, for

two months. In the weeks leading up to his arrest, Lehmann purchased between thirty and thirty-

two grams at a time, several times per week.

       On the day he was arrested, Lehmann purchased 32 grams (approximately 320 doses) of

carfentanyl from Shaw. Also, after his arrest, Lehmann called Thornton from jail to suggest that

Lehmann’s associate Brian Wylie take over for Lehmann while the latter was in prison. Thornton

then called Wylie to invite him to Detroit to join in his scheme, but Wylie refused to go. Both

Doolin and Lehmann cooperated against Thornton, describing to law enforcement how they

purchased heroin in Lexington from Shaw, who was supplied in Detroit by Thornton.

       After his arrest, Thornton called his girlfriend demanding that she destroy evidence.

A search of Thornton’s vehicle revealed more than $900 in cash and four cell phones. A search

of his residence revealed drug paraphernalia, nearly 100 grams of heroin mixed with carfentanyl,

and approximately 114 grams of carfentanyl. The quantity of drugs represented over 2,000

individual doses with a street value of more than $20,000.

       From this evidence, a rational factfinder could conclude beyond a reasonable doubt that

there existed an agreement between Thornton and others to distribute drugs and that Thornton was

an active participant in the scheme. Thornton regularly communicated with Doolin and Lehmann.

He was arrested with Shaw in his vehicle. Both Doolin and Lehmann obtained their drugs from

Shaw, who acted as Thornton’s middleman.

       Thornton claims that he was not engaged in a larger conspiracy, but rather he engaged in

nothing more than a few individual drug transactions. To be sure, a “buyer-seller relationship




                                               11
No. 19-5953, United States v. Thornton


alone is insufficient to tie a buyer to a conspiracy.” United States v. Deitz, 577 F.3d 672, 680 (6th

Cir. 2009) (quotations omitted). But, we have “often upheld conspiracy convictions where there

was additional evidence . . . from which the knowledge of the conspiracy could be inferred.” Id.

We have identified four factors in determining whether a series of drug transactions comprise part

of a larger conspiracy: “(1) the length of the relationship; (2) the established method of payment;

(3) the extent to which transactions are standardized; and (4) the level of mutual trust between the

buyer and the seller.” Id. at 681 (citation omitted).

         Here, the evidence established far more than a simple buyer-seller relationship. Thornton

was not a buyer, but rather a seller to, at a minimum, two buyers—Doolin and Lehmann.

Thornton’s relationship with those individuals lasted for several months, and at least as to

Lehmann, involved sales on credit. See United States v. Lopez-Medina, 461 F.3d 724, 747 (6th

Cir. 2006) (noting that “fronting” drugs to a buyer may demonstrate more than a mere buyer-seller

relationship). Those sales were standardized, as Doolin and Lehmann regularly purchased 30

grams of heroin and carfentanyl multiple times a week through Thornton’s middleman, Shaw.

Evidence of repeated purchases involving large quantities of drugs is evidence of a conspiracy

rather than a buyer-seller relationship. United States v. Martinez, 430 F.3d 317, 332–33 (6th Cir.

2005). Over the course of the conspiracy, Lehmann and Doolin received hundreds of grams of

heroin and carfentanyl, which translated to thousands of individual doses.                        And there was

significant trust between Doolin, Lehmann and Thornton. Both Doolin and Lehmann warned

Thornton to be careful after they had been arrested, and Lehmann tried to find a replacement to

take over his distribution ring while he was in custody.1


         1
           Thornton briefly argues that the evidence is insufficient to sustain his conviction because the government
failed to prove that he knew he was distributing carfentanyl rather than heroin. That argument has no merit because
the government only had to prove that Thornton knew “that the substance he [was] dealing with [was] some
unspecified substance listed on the federal drug schedules.” McFadden v. United States, 576 U.S. 186, 191 (2015).



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No. 19-5953, United States v. Thornton


                                                          D.

         Finally, Thornton challenges the procedural reasonableness of his sentence. 2 We review

the reasonableness of a sentence for abuse of discretion. United States v. Dunnican, 961 F.3d 859,

880 (6th Cir. 2020) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Any factual findings

made at sentencing are reviewed for clear error. United States v. West, 962 F.3d 183, 187 (6th Cir.

2020). A procedural reasonableness challenge “requires us to ensure that the district court: (1)

properly calculated the applicable advisory Guidelines range; (2) considered the other 18 U.S.C.

§ 3553(a) factors as well as [arguments for a sentence outside the range]; and (3) adequately

articulated its reasoning for imposing the particular sentence chosen.” Id. (quotation omitted)

(alteration in original). Thornton challenges his base offense level and three enhancements that

the district court imposed. We review each in turn.

         1.       Base Offense Level

         Thornton first challenges his base offense level of 30. “For defendants convicted of drug

crimes, the base offense level at sentencing depends on the amount of drugs involved in the

offense.” United States v. Averill, 636 F. App’x 312, 315 (6th Cir. 2016) (citing U.S.S.G.

§ 2D1.1(c)). The district court’s drug-quantity determination is reviewed for clear error. United

States v. Rios, 830 F.3d 403, 436 (6th Cir. 2016). In reaching that determination, “[t]he district

court may rely on any competent evidence in the record.” United States v. Hough, 276 F.3d 884,

891 (6th Cir. 2002).




         2
           Thornton mentions, in a heading, that he is also challenging the substantive reasonableness of his sentence.
However, he has failed to present any arguments as to why his 292-month sentence—which is at the very bottom of
the Guideline recommendation—was substantively unreasonable. He has therefore forfeited his substantive
reasonableness challenge. See McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997) (first and third alterations in
original) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
are deemed [forfeited]. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving
the court to . . . put flesh on its bones.” (citations omitted)).


                                                          13
No. 19-5953, United States v. Thornton


       The district court held Thornton accountable for 672 grams of heroin and 32 grams of

carfentanyl that Thornton distributed to Lehmann and 215 grams of carfentanyl that was found in

Thornton’s residence after his arrest. Those amounts, under the Guidelines, are equivalent to

1,286.8575 kilograms of marijuana, which sets a base offense level of 30. U.S.S.G. §2D1.1(c)(5),

cmt. n.8.

       Thornton contends that he should not be held accountable for the 672 grams of heroin and

32 grams of carfentanyl that were in Lehmann’s possession. Under the Guidelines, a defendant’s

base level can be enhanced based on the acts of others within a conspiracy. See U.S.S.G.

§ 1B1.3(a)(1)(B). “[I]n order to hold a defendant accountable for the acts of others [under

§ 1B1.3(a)(1)(B)], a district court must make two particularized findings: (1) that the acts were

within the scope of the defendant’s agreement; and (2) that they were foreseeable to the defendant.”

United States v. Campbell, 279 F.3d 392, 399–400 (6th Cir. 2002) (quotation omitted).

       The district court made both requisite findings. The district court found that Thornton and

Lehmann agreed to an arrangement whereby Thornton would traffic drugs from Detroit to Central

Kentucky, where the drugs would then be distributed by other people. The district court then found

that, because Lehmann contacted Thornton to be a distributor in Kentucky, it was reasonably

foreseeable that Lehmann would possess Thornton’s drugs.

       Thornton contends that Lehman was an “unreliable witness” and thus lacked credibility.

But, the district court concluded that Lehmann’s testimony was credible. The district court heard

evidence from Doolin and Lehmann that confirmed the drug quantity and heard other

corroborating evidence that supported the drug quantity. We find no error in Thornton’s base

offense level.




                                                14
No. 19-5953, United States v. Thornton


        2.      Firearm Enhancement

        Thornton next challenges his enhancement for a drug offense that involved a firearm. See

U.S.S.G. § 2D1.1(b)(1). The enhancement applies “if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.11(A).

The government must establish by a preponderance of the evidence that a defendant possessed the

firearm during the drug trafficking crime. United States v. Miggins, 302 F.3d 384, 390–91 (6th

Cir. 2002).

        Here, officers found a loaded .380 caliber handgun on a shelf on a mantel on top of several

pills. It was in close proximity to the room where there was drug manufacturing equipment, drug

paraphernalia, and over 200 grams of heroin and carfentanyl. And, when Thornton was in the back

of the police cruiser after being arrested, he called his girlfriend to tell her father to get rid of the

guns that Thornton had stored in his home. The district court did not clearly err in determining

that the handgun found alongside several pills and in close proximity to heroin, carfentanyl,

manufacturing materials, and paraphernalia, was used during the commission of the offense.

Likewise, it was not “clearly improbable that the weapon was connected with the offense.”

U.S.S.G. §2D1.1 cmt. n.11(A).

        3.      Aggravating-Role Enhancement

        Thornton next challenges his aggravating-role enhancement. The enhancement applies

when a defendant was an “organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a)(1). “We review the factual findings

of the district court on this issue for clear error and accord deference to the legal conclusion that a

person is an organizer or leader under Section 3B1.1. United States v. Olive, 804 F.3d 747, 759

(6th Cir. 2015) (citing United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013)). Relevant




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No. 19-5953, United States v. Thornton


factors include “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 cmt. n.4.       In addition, a defendant need only have led “one . . . other

participant[].” Id. § 3B1.1 cmt. n.2.

       The district court did not err in imposing this enhancement. Thornton contends that the

crime did not involve five people, but the district court found otherwise. Thornton’s drug-

distribution scheme involved, at a minimum, himself, Shaw, Lehmann, Doolin, and Ruggiero.

There was also Wylie, who watched over Lehmann’s drug supply and nearly took over Lehmann’s

role in the conspiracy, as well as several unidentified participants who were noted at trial.

Testimony also showed that Thornton exercised a great deal of authority over his co-conspirators,

that he actively participated in recruiting dealers, and that he sold drugs himself. The district court

did not clearly err in imposing this enhancement.

       4.      Obstruction-of-Justice Enhancement

       Finally, Thornton challenges the obstruction-of-justice enhancement. We review the

district court’s factual findings for clear error and its determination of the enhancement’s

applicability de novo. See United States v. Watkins, 691 F.3d 841, 851 (6th Cir. 2012). The

enhancement applies where a defendant “willfully obstructed or impeded, or attempted to obstruct

or impede . . . the investigation” that resulted in the defendant’s conviction. U.S.S.G. § 3C1.1(1).

Obstruction under the Guidelines includes “destroying or concealing or directing or procuring

another person to destroy or conceal evidence that is material to an official investigation . . . or

attempting to do so.” Id. § 3C1.1 cmt. n.4(D). Where “such conduct occurred contemporaneously




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No. 19-5953, United States v. Thornton


with arrest,” the enhancement applies if that conduct “resulted in a material hindrance to the

official investigation or prosecution.” Id.; see United States v. Lineberry, 7 F. App’x 520, 524–25

(6th Cir. 2001) (per curiam) (“Concealing evidence material to an official investigation or judicial

proceeding, or directing or procuring another person to do so, or attempting to do so, will trigger

an enhancement for obstruction of justice.”).

       The district court did not err in imposing this enhancement. After his arrest, Thornton

made two phone calls to his girlfriend, in which he directed her to tell her father to dispose of the

guns in his home, to flush contraband, and to erase Thornton’s phones, among other things. In a

third call, the girlfriend confirmed that her father did what Thornton had asked. Because Thornton

attempted to “destroy[] or conceal[] or procur[e] another person to destroy or conceal evidence,”

U.S.S.G. § 3C1.1 cmt. n.4(D), which likely resulted in a material hindrance to the investigation,

the district court did not err in imposing an obstruction-of-justice enhancement.

                                                III.

       For the reasons discussed above, we AFFIRM Thornton’s conviction and sentence.




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