                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0856n.06

                                        Case No. 14-5250
                                                                                     FILED
                            UNITED STATES COURT OF APPEALS                     Nov 14, 2014
                                 FOR THE SIXTH CIRCUIT                     DEBORAH S. HUNT, Clerk



UNITED STATES OF AMERICA,                           )
                                                    )
          Plaintiff-Appellee,                       )
                                                    )      ON APPEAL FROM THE UNITED
v.                                                  )      STATES DISTRICT COURT FOR
                                                    )      THE WESTERN DISTRICT OF
RANDY MOSS,                                         )      TENNESSEE
                                                    )
          Defendant-Appellant.                      )
                                                    )

BEFORE: SILER, SUTTON, and McKEAGUE, Circuit Judges.

          SILER, Circuit Judge. Defendant Randy Moss appeals the district court’s sentence of

120 months for participation in a drug trafficking conspiracy. For the reasons stated below, we

affirm.

                       FACTUAL AND PROCEDURAL BACKGROUND

          In 2013, twenty-two individuals, including Moss, were indicted for conspiracy to

distribute and possess with intent to distribute hydrocodone, in violation of 21 U.S.C. § 846.

Moss pleaded guilty to the charge in accordance with a written plea agreement.

          The Presentence Report assigned Moss a base offense level of 30 and a criminal history

category of VI. The base offense level was premised on a finding that Moss was responsible for

the distribution of at least 181,440 hydrocodone pills and 3,024 oxycodone pills. Moss filed a

pre-sentencing position paper in which he objected to the calculated base offense level. He
No. 14-5250                               United States v. Moss                                2


denied distributing any oxycodone pills and argued that he was only responsible for the

distribution of 40,000 to 50,000 hydrocodone pills.

       At the sentencing hearing, the Government presented testimony from co-defendants

Tiffany Jones and Jason Hopkins, both of whom had previously made proffer statements to

government agents. Jones testified that, as part of the conspiracy, she would travel to out-of-

state pharmacies three times a month, obtaining between 500 and 1500 pills on each occasion.

Jones then sold eighty percent of those pills to Moss. This pattern persisted for roughly a year.

Jones testified that, during the course of the conspiracy, the drug trafficking organization

obtained between 100,000 and 400,000 hydrocodone pills.

       Hopkins testified that, as part of the conspiracy, he made three or four trips a month to

obtain hydrocodone from 2010 to 2013. On each trip, he would obtain between 200 and

2000 pills. Beginning in 2011, Hopkins sold at least half of his supply of hydrocodone to Moss.

In 2012, Hopkins began selling oxycodone pills to Moss. Hopkins testified that he was able to

obtain between 120 and 360 oxycodone pills each month and that he sold roughly a hundred pills

to Moss on five different occasions in 2012. In total, Hopkins estimated that he sold Moss

700 or 800 oxycodone pills and 100,000 hydrocodone pills.

       Hopkins also testified that Moss was dealing with co-defendant Bradford Kelley at least

as far back as 2011. Kelley made three or four trips a month to obtain hydrocodone and sold half

of his supply to Moss.

       Michael Jackson, the Memphis police officer who served as the case agent, testified that

Kelley ran the drug trafficking organization from jail after Kelley was incarcerated in August

2012. Investigators recorded Kelley’s phone calls from the jail, and during at least one of those

calls, Kelley discussed oxycodone with Moss. Drawing upon his knowledge of proffer sessions
No. 14-5250                               United States v. Moss                                 3


with Hopkins and Jones, Jackson corroborated their testimony about their hydrocodone and

oxycodone sales to Moss.

        After testimony had concluded, the Government agreed to stipulate to a reduced number

of hydrocodone pills and oxycodone pills that would better reflect the amounts provided during

testimony. The new proposed calculations charged Moss with 133,840 hydrocodone pills and

1,600 oxycodone pills, giving him a base offense level of 26. Moss agreed to the Government’s

new figures and withdrew his objection as to his alleged conduct involving oxycodone. Moss

then made a brief statement directly to the court acknowledging his role in oxycodone dealing.

The court then granted a two-level reduction for acceptance of responsibility, but the

Government refused to make a motion for an additional one-level reduction. As a result, Moss

was assigned an adjusted total offense level of 24 and a criminal history category of VI, with a

Guidelines sentencing range of 100 to 120 months.

        In sentencing Moss, the district court made a comprehensive account of the factors

outlined in 18 U.S.C. § 3553(a). It indicated that it was constrained by the statutory maximum of

120 months. It described the sentence as “insufficient to deal with the significant involvement of

Mr. Moss given his entire history” and “barely provid[ing] adequate punishment for his

activities.”

                                         DISCUSSION

        We review a district court’s final sentencing determination for “reasonableness under a

deferential abuse of discretion standard.” United States v. Cochrane, 702 F.3d 334, 343 (6th Cir.

2012) (citing United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007)). Moss only challenges

the substantive reasonableness of the sentence. He does not argue that the sentence was selected

arbitrarily or based on impermissible factors. Instead he argues that the district court failed to
No. 14-5250                                  United States v. Moss                                4


consider two issues that Moss characterizes as “non-statutory mitigating factors”: the absence of

an indictment against Moss for possession or distribution of oxycodone and the Government’s

failure to produce in discovery its evidence about Moss’s involvement in the possession and

distribution of oxycodone.

                                     I.      Moss’s Indictment

       The applicable guideline for Moss’s crime of conviction, USSG § 2D1.1, provides for a

range of base offense levels depending on, among other factors, the quantity of drugs involved.

Section 1B1.3(a) of the Guidelines states: “Unless otherwise specified, . . . the base offense level

where the guideline specifies more than one base offense level . . . shall be determined on the

basis of . . . all acts and omissions committed, aided, abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant.” An application note adds that, “With respect to

offenses involving contraband (including controlled substances), the defendant is accountable for

all quantities of contraband with which he was directly involved . . . .” USSG § 1B1.3 cmt. n. 2.

       Moss has attempted to frame the absence of a specific indictment for conspiracy to

possess and distribute oxycodone as a “non-statutory mitigating factor” that affects his sentence

and is thus part of a challenge for substantive reasonableness. However, the commentary to the

Sentencing Guidelines explicitly states that “[t]ypes and quantities of drugs not specified in the

count of conviction may be considered in determining the offense level.” USSG § 2D1.1, cmt.

n.5 (citing USSG § 1B1.3(a)(2)). This commentary, which is authoritative, see Stinson v. United

States, 508 U.S. 36, 42-43 (1993), makes it clear that the aggregation of quantities of an indicted

drug type together with quantities of an unindicted drug type is part of the sentencing process.

Therefore, it cannot be presented as a mitigating factor that the district court was obliged to

consider, and the district court did not abuse its discretion by refusing to consider it.
No. 14-5250                                United States v. Moss                                  5


       The district court’s sentencing decision was in no way substantively unreasonable. The

court did not fail to consider relevant § 3553(a) factors—on the contrary, it was scrupulous in its

efforts to review all the factors, even those that had little or no impact on the final sentence. It

did not rely on any impermissible factors, and there is no suggestion that it placed an

unreasonable emphasis on any permissible factors.

          II.     Moss’s Inability to Obtain Proffer Statements Through Discovery

       At sentencing, Moss’s counsel stated that, prior to the sentencing hearing, he did not have

information that indicated Moss’s involvement in the distribution of oxycodone. This statement

was partially contradicted by counsel’s knowledge of a phone call between Moss and Kelley

discussing a theft of oxycodone from Moss and Moss’s subsequent efforts to retrieve his

property. Counsel’s main concern appears to have been his inability to review the proffer

statements of Jones and Hopkins, because as he put it, “[M]y clients don’t have the benefit of

proffered testimony regarding certain things and the right to confront those individuals that have

. . . rendered proffered testimony.”

       On appeal, Moss does not point to any law or procedural rule that would entitle him to

discovery of the Jones and Hopkins proffer statements.          That omission is not surprising.

18 U.S.C. § 3500(a) provides that:

       In any criminal prosecution brought by the United States, no statement or report
       in the possession of the United States which was made by a Government witness
       or prospective Government witness (other than the defendant) shall be the subject
       of subpoena, discovery, or inspection until said witness has testified on direct
       examination in the trial of the case.

Any disadvantage that accrued to Moss is the result of a generally applicable statute addressing

criminal procedure. It is not, therefore, a mitigating factor, let alone the sort of factor that the

sentencing judge was obliged to consider under 18 U.S.C. § 3553(a).
No. 14-5250       United States v. Moss   6


      AFFIRMED.
