                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0274p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                     X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                      -
                                                      -
                                                      -
                                                          No. 04-4129
         v.
                                                      ,
                                                       >
 LARRY CRAFT,                                         -
                             Defendant-Appellant. -
                                                     N
                      Appeal from the United States District Court
                    for the Northern District of Ohio at Youngstown.
              No. 03-00421—Kathleen McDonald O’Malley, District Judge.
                                           Argued: March 6, 2007
                                     Decided and Filed: July 20, 2007
            Before: BATCHELDER and MOORE, Circuit Judges; MILLS, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant. Matthew B. Kall,
ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. ON BRIEF: Kevin
M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant. Linda H. Barr, ASSISTANT
UNITED STATES ATTORNEY, Youngstown, Ohio, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        RICHARD MILLS, District Judge.
                                                 I. HISTORY
       On September 21, 2002, Youngstown, Ohio police officers discovered crack cocaine at the
residence of Jefferson Smith while they were investigating his death. After finding out that
Defendant Larry Craft was at Smith’s residence hours before Smith’s death, police left a phone
message with Craft’s mother asking Craft to contact them.



        *
          The Honorable Richard Mills, United States District Judge for the Central District of Illinois, sitting by
designation.


                                                         1
No. 04-4129           United States v. Craft                                                   Page 2


         On September 26, 2002, Craft, a high school graduate who attended special education
classes, went to the police station to speak with Detective Pat Kelly. Detective Kelly advised Craft
of his rights and the two men spoke for 30-45 minutes. Craft, who had experience with the criminal
justice system through previous drug and weapon offenses, incriminated himself and Bryon Taylor
about the cooking of crack cocaine in Smith’s house. Craft was never charged with respect to the
drugs police found in Smith’s house; however, police began investigating him for drug offenses.
        On March 4, 2003, Youngstown police referred Craft’s case to the Bureau of Alcohol
Tobacco, Firearms, and Explosives (“ATF”). At the request of ATF Task Force Officer Frank
Rutherford (“TFO Rutherford”), Detective Kelly contacted Craft on March 6, 2003, and asked Craft
to go to the ATF’s office for an interview. The interview was held that same day. Detective Kelly
observed the meeting between TFO Rutherford and Craft. TFO Rutherford advised Craft of his
rights and Craft signed a form acknowledging and waiving his rights. In his ensuing remarks, Craft
made a statement consistent with the one he made to Detective Kelly on September 26. TFO
Rutherford reduced Craft’s statement to writing and read it to Craft. Craft made insubstantial
corrections and then signed the statement.
       On November 13, 2003, a grand jury indicted Craft of conspiring to distribute and possess
with intent to distribute more than 50 grams of crack cocaine. Craft moved to suppress his
statements and the district court held a suppression hearing on April 7, 2004.
        Craft argued that his September 26, 2002, and his March 6, 2003, statements should be
suppressed. Craft asserted that the September statement should be suppressed because Detective
Kelly told him he was a suspect in Smith’s death, assured him he would not be charged with drug
offenses, did not advise him of his rights, and did not obtain a signed waiver. At the suppression
hearing, Detective Kelly stated that he told Craft “I was not interested in the drugs; I was interested
in the homicide.” Craft contended that his March 2003 statement should be suppressed because he
gave it based on his impression that he would not be charged with any drug offenses. After
considering the totality of the circumstances, the district court determined that Craft’s statements
were voluntary.
       Craft’s case proceeded to jury trial. On April 8, 2004, the government filed a 21 U.S.C.
§ 851 notice of its intent to use a prior conviction against Craft. Voir dire took place on June 16,
2004, and trial began that same day. At trial, the government’s evidence showed that Smith
possessed at least one kilogram of cocaine on September 20, 2002, and asked Craft to cook it.
Bryon Taylor testified that Craft cooked two nine-ounce portions of the cocaine into crack. This was
corroborated by Craft’s own statements. On June 17, the jury found Craft guilty.
       On August 26, 2004, the district court sentenced Craft. The court never engaged Craft in
a 21 U.S.C. § 851(b) colloquy to determine whether he contested the prior conviction stated in the
government’s April 8 tender. However, upon consideration of the applicable statutory mandatory
minimum, the district court sentenced Craft to 240 months in prison and imposed a term of 10 years
supervised release. Craft timely appealed, raising four issues for this Court’s consideration.
                                       II. JURISDICTION
       This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                                 III. STANDARD OF REVIEW
        The Court reviews the district court’s factual findings concerning the confession for clear
error, while the issue of its voluntariness is reviewed de novo. See United States v. Marks, 209 F.3d
577, 581 (6th Cir. 2000). The standard of review for a sufficiency of the evidence challenge is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
No. 04-4129           United States v. Craft                                                  Page 3


of fact could have found the essential elements of the crime beyond a reasonable doubt.” United
States v. Davis, 473 F.3d 680, 681 (6th Cir. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 319,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Because Craft did not contest the use of his prior conviction,
the Court reviews the use of his prior conviction for plain error. See United States v. Calloway, 116
F.3d 1129, 1134 (6th Cir. 1997). Because Craft also did not argue that enhancing his sentence based
on his prior conviction violated the Sixth Amendment, the Court reviews the constitutionality of the
sentencing enhancement for plain error. See United States v. Hopkins, 151 F.App’x 448, 457 (6th
Cir.2005).
                                        IV. DISCUSSION
       A. Voluntariness of Confession
        Craft’s first contention is that his confession was involuntary. When considering whether
a confession is voluntary, we look at “the totality of the circumstances” to determine whether “a
defendant’s will was overborne in a particular case.” Ledbetter v. Edwards, 35 F.3d 1062, 1067 (6th
Cir.1994). Relevant factors include the defendant’s age, his level of education and intelligence,
whether he was advised of his rights, whether he suffered physical punishment and the length of the
questioning he endured. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047,
36 L.Ed.2d 854 (1973) (citations omitted). A confession is involuntary if the police engaged in
objectively coercive activity, the coercive activity was sufficiently severe to overcome the
defendant’s will and the defendant’s statements stemmed from the coercion. See United States v.
Mahan, 190 F.3d 416, 422 (6th Cir.1999).
         Craft contends that he confessed because Detective Kelly promised him that he would not
be prosecuted for drug offenses. However, at the suppression hearing, Detective Kelly stated that
he told Craft only that “ . . . I was not interested in the drugs; I was interested in the homicide.”
Detective Kelly’s statement contains an implicit promise not to prosecute Craft for drug offenses.
It is reasonable why Craft thought he would avoid state and federal charges, given that Detective
Kelly worked with a joint task force and was present during all the interrogations. This mutuality
of law enforcement can make for troubling results when promises are made. See United States v.
Johnson, 351 F.3d 254, 262 (6th Cir. 2003) (“[P]romises of leniency may be coercive if they are
broken or illusory.”). This is especially so when, as here, a defendant is only a high school graduate
who attended special education classes.
        In this case, however, Craft and Detective Kelly disputed the timing of Detective Kelly’s
alleged promises, a critical fact in our analysis. Craft testified that he was told before he gave a
statement on September 26, 2003, that he would not face drug charges; Detective Kelly testified that
he told Craft that he was “not interested” in drugs only at the end of the interview, after Craft had
already given his statement. If Detective Kelly made an implicit promise after Craft had given his
statement, it could not have been coercive, as Craft’s decision to make a statement could not have
depended on Detective Kelly’s promise. See Williams v. Withrow, 944 F.2d 284, 289 (6th Cir. 1991)
(discussing the coercive nature of “deliberate inducement of inculpatory statements through illusory
promises of leniency” (emphasis added)), aff’d in part and rev’d on other grounds in part, 507 U.S.
680 (1993). The district court credited Detective Kelly’s testimony, concluding that Detective
Kelly’s implicit promise was a “gratuitous offer that did not induce” Craft’s statements. We
conclude that the district court did not clearly err in making this credibility determination.
        Craft and Detective Kelly similarly disputed the timing of the alleged promise made during
the March 6, 2004 interview. Craft testified that he was told that he would not face drug charges
before he gave a statement; Detective Kelly testified that the issue came up only after Craft made
his statement and that TFO Rutherford told Craft that Craft could possibly face drug charges. The
No. 04-4129            United States v. Craft                                                       Page 4


district court again concluded that any implicit promise did not induce Craft’s statements, and we
again conclude that the district court did not clearly err in resolving this factual dispute.
         Finally, we conclude that any implicit promise made by Detective Kelly on September 26,
2003, after Craft gave a statement, did not render Craft’s March 6, 2004 statement inadmissible. A
substantial amount of time passed between the two statements, Craft was not under police custody
in the interim, and Craft was again advised of his Miranda rights at the outset of the March 6, 2004
interview. Under such circumstances, any potential coercive effect of Detective Kelly’s September
26, 2003 implicit promise did not taint the March 6, 2004 statement. Cf. Missouri v. Seibert, 542
U.S. 600, 622 (2004) (Kennedy, J., concurring in the judgment) (stating that, when police question
a suspect without administering the Miranda warnings, “a substantial break in time and
circumstances between the prewarning statement and the Miranda warning may suffice in most
circumstances” to render the postwarning statement admissible). Accordingly, we conclude that the
district court did not err in denying Craft’s motion to suppress his statements.
        B. Sufficiency of the Evidence
        Craft additionally argues that there was insufficient evidence to support his conspiracy
conviction. The Supreme Court has held that “proof of a criminal charge beyond a reasonable doubt
is constitutionally required” by the due process guarantee of the Fourteenth Amendment. In re
Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 1071, 25 L.Ed.2d 368 (1970). In Jackson, the Court
further explained that in order for a conviction to be supported by sufficient evidence, it must be
possible for some rational trier of fact to “have found the essential elements of the crime beyond a
reasonable doubt.” Jackson, 443 U.S. at 319. The evidence must be viewed “in the light most
favorable to the prosecution.” Id.
        To convict Craft of conspiracy under 21 U.S.C. § 846, “the government was required to
prove that there was an agreement to violate the drug laws, and that [Craft] knew of and voluntarily
joined the conspiracy.” See United States v. Price, 258 F.3d 539, 544 (6th Cir. 2001) (citation
omitted). “Every member of a conspiracy need not be an active participant in every phase of the
conspiracy, so long as he is a party to the general conspiratorial agreement.” United States v.
Hernandez, 31 F.3d 354, 358 (6th Cir. 1994) (citation omitted). “A conspiracy may be inferred from
circumstantial evidence that can reasonably be interpreted as participation in the common plan.”
United States v. Crayton, 357 F.3d 560, 573 (6th Cir. 2004), cert. denied, 542 U.S. 910, 124 S.Ct.
2857 (2004) (quoting United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991) (citation
omitted)). “[T]he connection between the defendant and the conspiracy need only be slight.” Id.
(citation omitted).
         The evidence at trial showed that Smith possessed at least one kilogram of cocaine on
September 20, 2002, and that Craft cooked it into crack. This evidence came principally through
Craft’s statements to the police and the testimony of Bryon Taylor. Given the amount of crack at
issue, a rational jury could find beyond a reasonable doubt that Smith was distributing the drugs and
that Craft knew this and assisted Smith’s efforts by cooking the crack. As such, the jury had
sufficient evidence to convict Craft on the conspiracy charge.
        C. The § 851 Enhancement
         Next, Craft argues that the district court erred when it enhanced his sentence pursuant to 21
U.S.C. § 851(b), a provision which required the sentencing judge to ask Craft whether he affirmed
or denied the conviction listed in the government’s April 8, 2004, tender. Craft never objected to
the enhancement or the lack of colloquy by the district court. “Before an appellate court can correct
an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial
rights. If all three conditions are met, an appellate court may then exercise its discretion to notice
a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation
No. 04-4129           United States v. Craft                                                    Page 5


of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137
L.Ed.2d 718 (1997) (internal citations and quotations omitted).
        Craft contends that the district court plainly erred by not engaging him in a § 851(b)
colloquy. The contention is unavailing. Craft had an opportunity to review his presentence report,
he and his counsel agreed that it accurately stated his prior offenses, and counsel concluded that it
properly calculated his criminal history. Thus, even though the district court did not engage Craft
in a § 851(b) colloquy, Craft had ample opportunity to contest his prior conviction before his
sentence was imposed. Moreover, the district court had no discretion with respect to Craft’s
sentence as there was a mandatory minimum sentence of 240 months for Craft’s offense. Either of
these things prevent Craft from establishing plain error as to any § 851(b) violation.
        If all of this were not enough, § 851(e) precludes Craft from challenging the validity of any
prior conviction which occurred more than five years before the government filed its information
pursuant to 21 U.S.C. § 851(a), notifying him that it intended to rely on a 1991 conviction to seek
an enhanced sentence. Craft’s 1991 conviction occurred more than five years prior to the
government’s 2004 filing of the § 851(a) notice. The district court did not plainly err in failing to
conduct a § 851(b) colloquy because Craft could not have challenged the prior conviction in any
event. See United States v. Hill, 142 F.3d 305, 313 (6th Cir. 1998) (“neither the statute nor reason
‘requires a trial court to adhere to the rituals of section 851(b) where a defendant, as a matter of law
[pursuant to § 851(e)], is precluded from attacking the conviction forming the basis of the
enhancement information.’”) (citing United States v. Nanez, 694 F.2d 405, 413 (5th Cir. 1982)); see
also United States v. West, 130 F.App’x 753, 760 (6th Cir. 2005) (“Requiring the trial court to
conduct a colloquy [where the challenged conviction falls outside the five year period under
§ 851(e)] would be ‘elevating form over substance,’ contrary to the purposes of § 851.”) (citation
omitted).
       D. Sixth Amendment
        Finally, Craft contends that the district court’s use of his prior conviction as an enhancement
violates the Sixth Amendment. It is well settled in this Circuit that Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not require the nature of prior convictions
to be determined by a jury. United States v. Townsend, 206 F.App’x 444, 451 (6th Cir. 2006); see
also United States v. Beasley, 442 F.3d 386, 391 (6th Cir. 2006) (“[T]he Supreme Court has
uniformly excepted ‘the fact of a prior conviction’ from its general rule that sentence-enhancing
facts must be found by a jury and proved beyond a reasonable doubt.”). Accordingly, this last
contention also fails.
                                        V. CONCLUSION
       For the foregoing reasons, we AFFIRM the district court.
