               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0332n.06
                            Filed: May 15, 2009

                                     Nos. 07-1652, 07-1711

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )
                                                        )        ON APPEAL FROM THE
       Plaintiff-Appellee,                              )        UNITED STATES DISTRICT
                                                        )        COURT     FOR     THE
v.                                                      )        WESTERN DISTRICT OF
                                                        )        MICHIGAN
ANDRE MANJATE and JEROME LEWIS,                         )
                                                        )           MEMORANDUM
       Defendants-Appellants.                           )             OPINION



BEFORE:        MOORE and McKEAGUE, Circuit Judges; and FORESTER, District Judge.*

       McKEAGUE, Circuit Judge. Defendants Andre Manjate and Jerome Lewis were charged

in a twenty-count indictment in the Western District of Michigan with drug trafficking conspiracy

and related offenses. They were tried jointly on nineteen of the twenty counts in a seven-day jury

trial in December 2006. The jury found defendants guilty as charged, with one exception.

Defendant Lewis was found not guilty of distribution of heroin resulting in serious bodily injury.

Both defendants were sentenced on March 22, 2007. Defendant Lewis was sentenced to prison for

420 months, the statutory mandatory minimum sentence for the crimes he was convicted of.

Defendant Manjate was sentenced to 224 months in prison, a sentence within the applicable advisory

_________________________

      *Honorable Karl S. Forester, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Nos. 07-1652, 07-1711
United States v. Manjate and Lewis
Guidelines range. Both defendants challenge the lawfulness of their convictions and sentences on

several grounds, all of which we find to be meritless. We therefore affirm.

       I. Suppression Motion (Lewis)

       The first claim of error relates to a pretrial suppression motion filed by defendant Lewis in

relation to evidence seized by the police in a traffic stop on February 17, 2005. After an evidentiary

hearing, the district court denied the motion in a twenty-page opinion. The court held the scope of

the temporary detention following the traffic stop was not unreasonably extended in awaiting the

arrival of a drug detection canine unit because the officer had reasonable suspicion that criminal

activity was afoot and the delay was minimal. Lewis insists the facts known to City of Wyoming

Police Sergeant John McCaw did not amount to reasonable suspicion and that he was subject to an

unreasonable seizure based on a mere hunch. Lewis does not dispute McCaw’s testimony that he

validly pulled-over the Plymouth Breeze Lewis was driving based on an observed traffic violation.

He contends, however, that after the purpose of the traffic stop had been completed, he should have

been released.

       We review the district court’s factual findings for clear error and its legal conclusions de

novo. United States v. Branch, 537 F.3d 582, 587 (6th Cir. 2008). Once the purpose of a traffic stop

is completed, an officer may not further detain the vehicle or its occupants unless he has made

observations which, under the totality of the circumstances known to the officer, give rise to

reasonable and articulable suspicion that criminal activity is afoot. United States v. Perez, 440 F.3d

363, 370 (6th Cir. 2006). While reasonable suspicion must be based on more than an “ill-defined

hunch,” an officer may draw on his own experience and specialized training to draw inferences and

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United States v. Manjate and Lewis
deductions from the cumulative information available that might well elude an untrained person.

Id. at 371. Any continued detention must be temporary and the investigative means used should be

the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short

period of time. Perez, 440 F.3d at 372.

       The district court identified the following circumstances as legitimately contributing to

Sergeant McCaw’s formation of reasonable suspicion:

                First, Sergeant McCaw observed Lewis’ vehicle at a known drug house at an
       unusual time of the morning [4:20 a.m.], parked toward the rear of the driveway with
       its lights on, and the vehicle left a short time later. . . .

              Second, during the stop, Lewis gave information to Sergeant McCaw
       regarding his destination that was inconsistent with common sense. . . .

               Third, Lewis stated during the stop that he was visiting his friend, Paula.
       While this information alone would not suggest criminal activity, given Sergeant
       McCaw’s prior knowledge that Paula Nice lived at and sold drugs from the residence,
       it served to strengthen the suspicion that Lewis had engaged in a drug transaction and
       that Paula Nice was still engaged in the sale of drugs.

               Fourth, Sergeant McCaw observed an ‘old-fashioned’ hard-sided briefcase
       in the back seat of Lewis’ vehicle. Sergeant McCaw testified that the briefcase had
       locks on it and that he found it odd that a younger person such as Lewis [24 years
       old] would be carrying an older-style briefcase. . . .

              Finally, Sergeant McCaw noticed that throughout the traffic stop, Lewis was
       very short with his answers and avoided eye contact, indicating that he was nervous.
       ...

Opinion Dec. 27, 2005, pp. 9-12, JA 150-53.

       Considering that McCaw had received substantial specialized training in narcotics trafficking

and had several years’ experience in narcotics investigations, we concur in the district court’s



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United States v. Manjate and Lewis
determination that these known facts, viewed under the totality of the circumstances, were sufficient

to justify the inference drawn by McCaw that Lewis may have been involved in drug trafficking.

        Lewis argues that McCaw’s information regarding drug trafficking at the residence was stale

(i.e., over six months old) and that every other listed circumstance could have an innocent

explanation. Circumstances comprising a particularized and objective basis for reasonable suspicion

need not be uncommon or especially unique. United States v. McCauley, 548 F.3d 440, 444 (6th Cir.

2008). Although each particular act in a series of acts may be innocent in itself, taken together, they

may substantiate suspicion of wrongdoing warranting further investigation. United States v. Marxen,

410 F.3d 326, 329 (6th Cir. 2005). Lewis’s argument is based on an improper parsing of the

information available to McCaw. See United States v. Orsolini, 300 F.3d 724, 728 (6th Cir. 2002)

(district court held to have erred by analyzing suspicious circumstances individually rather than in

their totality). We therefore reject it.1

        Considering the totality of the circumstances, and giving due deference to the fact findings

of the district court, which conducted the hearing and observed the testimony of the witnesses, see

Branch, 537 F.3d at 587 (acknowledging that district court has institutional advantage in addressing

reasonable suspicion inquiry), we find no error in the determination that Sergeant McCaw had


        1
         Moreover, as the district court noted, the degree of intrusion entailed in waiting for the
canine unit to arrive was minimal, five to ten minutes. To the extent Lewis argues the traffic stop
was excessively intrusive in that he was forcibly removed from the vehicle and placed under arrest,
this argument, too, is unavailing. It is well-established that an officer is justified as a matter of
course in ordering the driver of a lawfully stopped car to exit the vehicle. United States v.
Montgomery, 377 F.3d 582, 585-86 (6th Cir. 2004). It is undisputed that Lewis was removed from
the car and arrested only after and because he repeatedly refused to comply with McCaw’s lawful
order to exit the car.

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United States v. Manjate and Lewis
reasonable suspicion justifying a brief investigative detention. Accordingly, defendant Lewis’s

motion to suppress was properly denied.2

       II. Possession of Firearm in Furtherance of Drug Trafficking (Lewis)

       Under Count 13 of the indictment, defendant Lewis was found guilty of possessing a firearm

in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) and §

924(c)(1)(C)(1). The verdict was based on the seizure of a handgun during execution of a search

warrant at Lewis’s residence on March 22, 2005. Lewis admits that he was involved in drug

trafficking and admits that he possessed the handgun found in the bedroom closet of his apartment.

Yet, he contends the government presented no evidence to support a finding that he possessed the

gun in furtherance of drug trafficking. Lewis argues that the district court erred when it denied his

Rule 29 motion for judgment of acquittal at the close of the government’s case-in-chief.

       We review the denial of a Rule 29 motion de novo. We must affirm the denial, however, “if

the evidence, viewed in the light most favorable to the government, would allow a rational trier of

fact to find the defendant guilty beyond a reasonable doubt.” United States v. McGee, 529 F.3d 691,



       2
        Lewis also argues perfunctorily that the manner in which the dog-sniff and ensuing search
of his vehicle were conducted was unreasonable. These arguments are not properly before us
because they were not raised in the district court, see United States v. Ellison, 462 F.3d 557, 560 (6th
Cir. 2006), and because the arguments are not developed but are mentioned only in a perfunctory
manner, see United States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006). We therefore give them
no consideration.
        We note that the Supreme Court recently clarified the circumstances under which officers
may conduct a warrantless search of a vehicle incident to a lawful arrest. Arizona v. Gant, — S.Ct.
— , 2009 WL 1045962 at *11 (April 21, 2009). Gant has no bearing on this case, as the warrantless
search of Lewis’s vehicle and its contents was, irrespective of Lewis’s arrest, justified by probable
cause after the drug detection dog alerted positively for narcotics. See Perez, 440 F.3d at 374-75.

                                                 -5-
Nos. 07-1652, 07-1711
United States v. Manjate and Lewis
696 (6th Cir. 2008) (quoting United States v. Solorio, 337 F.3d 580, 588 (6th Cir. 2003)).

Circumstantial evidence may be sufficient to sustain a guilty verdict, and the evidence need not

exclude every reasonable hypothesis except guilt to be sufficient. United States v. Reed, 167 F.3d

984, 992 (6th Cir. 1999).3

       In denying the motion, the district court noted that the handgun was found in Lewis’s

bedroom closet in reasonably close proximity to a significant amount of cash and drugs, i.e., within

a few feet. The court further noted that, even though the gun was unloaded, ammunition was kept

nearby with the drugs in the bedroom dresser. The district judge recognized it as the kind of weapon,

a .38 caliber pistol, commonly used by drug traffickers. This evidence was sufficient, the court

concluded, to permit a reasonable inference by the jury that Lewis possessed the gun in furtherance

of his admitted drug trafficking activities. We agree.

       A firearm is possessed in “furtherance of” a drug trafficking offense if there is a nexus

between the firearm and the crime; if it advances, promotes, or facilitates the crime. United States

v. Paige, 470 F.3d 603, 609 (6th Cir. 2006). The standards under which we evaluate the sufficiency

of the evidence are summarized as follows:

              [T]he possession of a firearm on the same premises as a drug transaction
       would not, without a showing of a connection between the two, sustain a § 924(c)
       conviction. In order for the possession to be in furtherance of a drug crime, the
       firearm must be strategically located so that it is quickly and easily available for use.


       3
          Lewis purports to specifically challenge the district court’s denial of his Rule 29 motion at
the close of the government’s case-in-chief, rather than its denial of the same motion at the close of
all the proofs. Yet, because he introduced evidence at trial, he is deemed to have waived this specific
objection and, on review, we must evaluate the sufficiency of the evidence based on the record as
a whole. United States v. Wagner, 382 F.3d 598, 611 n.2 (6th Cir. 2004).
                                                 -6-
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United States v. Manjate and Lewis
       Other factors that may be relevant to a determination of whether the weapon was
       possessed in furtherance of the crime include whether the gun was loaded, the type
       of weapon, the legality of its possession, the type of drug activity conducted, and the
       time and circumstances under which the firearm was found.

United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001) (citations omitted). The Mackey court

noted that these other factors may help "to distinguish possession in furtherance of a crime from

innocent possession of a wall-mounted antique or an unloaded hunting rifle locked in a cupboard."

Id. Although mere possession of a firearm in the same premises where drug trafficking takes place

is insufficient, “a jury can reasonably infer that firearms which are strategically located so as to

‘provide defense or deterrence in furtherance of the drug trafficking’ are used in furtherance of a

drug trafficking crime.” United States v. Swafford, 385 F.3d 1026, 1028-29 (6th Cir. 2004) (quoting

United States v. Couch, 367 F.3d 557, 561 (6th Cir. 2004)).

       Applying these standards, we conclude, on viewing the evidence in the light most favorable

to the government, that a rational jury, properly instructed in accordance with the Mackey standards

summarized above (as this jury was), could reasonably infer that Lewis possessed the handgun found

in his bedroom closet in defense of his admitted drug trafficking activities. It was located in close

proximity to drugs and cash and ammunition, so as to be quickly and easily accessed for use. It was

not a collector’s piece prominently displayed, nor a hunting weapon stored under lock and key.

Moreover, it was the same type of weapon Lewis was found to have possessed along with drugs in

the Plymouth Breeze one month earlier.

       The facts that the gun was not loaded and that it was not unlawful for Lewis to possess it

weigh against a finding that Lewis possessed it in furtherance of drug trafficking. Lewis testified

                                                -7-
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United States v. Manjate and Lewis
that he had never fired a gun, did not like to have a loaded firearm in his home, and did not use the

.38 caliber handgun in furtherance of his admitted drug trafficking. He explained that he had loaned

money to a man from New York whom he did not know, “Derrick,” to invest in internet gambling,

and he “guessed” that Derrick had given him the handgun to hold as collateral for the loan. The jury

had the opportunity to hear Lewis’s explanation and assess his credibility. The jury also heard Lewis

admit that he owned the briefcase that was found to contain drugs and a .38 caliber pistol one month

earlier. The jury also heard Lewis’s responses to questions on cross-examination as to whether it

was pure coincidence that the two handguns he possessed were similar and that the ammunition

found in his dresser drawer happened to fit both weapons.

       In sum, considering the record as a whole in the light most favorable to the government, we

cannot hold that the evidence presented was not reasonably sufficient to sustain the jury’s verdict.

The instant evidence is analogous to that found to be sufficient in other recent Sixth Circuit rulings.

See e.g., Swafford, 385 F.3d at 1029; Mackey, 265 F.3d at 462; Smith v. United States, 285 F. App’x

209, 217 (6th Cir. 2008) (unpublished).

       III. Variance Between Indictment and Evidence (Manjate)

       Defendant Manjate was convicted under Count 1 of participating in a heroin trafficking

conspiracy “beginning about September, 2004 and continuing to on or about December 20, 2005.”

Under Count 2, he was convicted of participating in a cocaine trafficking conspiracy “beginning

about in or before the Spring of 2004 and continuing to on or about March 22, 2005.” He challenges

both convictions, contending the government presented evidence of drug trafficking activities that


                                                 -8-
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United States v. Manjate and Lewis
predated both charged conspiracies, creating the possibility that the jury convicted him based on

uncharged conduct, in violation of his Sixth Amendment right to be informed of the charges against

him.

        Manjate acknowledges that, because he is raising this issue for the first time on appeal, it is

reviewed only for plain error. He must therefore show that “(1) an error occurred; (2) the error was

obvious or clear; (3) the error affected his substantial rights; and (4) the error seriously affected the

fairness, integrity, or public reputation of the judicial proceedings.” United States v. Mayberry, 540

F.3d 506, 512 (6th Cir. 2008) (quoting United States v. Cline, 362 F.3d 343, 348 (6th Cir. 2004)).

        To obtain a reversal of a conviction based on a variance between the indictment and evidence

so serious as to be considered a constructive amendment of the indictment, Manjate must show both

a variance and that his substantial rights were affected. United States v. Budd , 496 F.3d 517, 521-

22 (6th Cir. 2007). To satisfy this second requirement, Manjate must demonstrate “that the

important functions of the indictment were undermined by both the evidence presented and the jury

instructions.” Id. at 522 (quoting United States v. Hynes, 467 F.3d 951, 962 (6th Cir. 2006)). This

requirement reflects the rule that “once the indictment presents a factual basis for an element of a

crime, the prosecution may not rest its proof of that element of the crime at trial on other facts.” Id.

(quoting United States v. Caldwell, 176 F.3d 898, 902 (6th Cir. 1999)).

        Whereas Manjate objects to testimony of drug trafficking activities attributed to him that

predated the December 2006 trial by some two years, most of these activities actually fell well within

the periods of the two charged conspiracies, allegedly occurring from September 2004 to December


                                                  -9-
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United States v. Manjate and Lewis
2005, and Spring 2004 to March 2005. Moreover, to the extent some of the testimony related to

transactions between Brandon Hankins and Manjate prior to the charged conspiracies, this

represented legitimate background evidence, admissible to explain the source of their relationship

as it continued during the periods of the charged conspiracies. The evidence was properly admitted

as res gestae evidence, i.e., evidence of “other acts that are inextricably intertwined with the charged

offense or those acts, the telling of which is necessary to complete the story of the charged offense.”

United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000). It represented background evidence

having a “causal, temporal or spatial connection with the charged offense” and helped define the

scope of the charged conspiracies. Mayberry, 540 F.3d at 514 (quoting Hardy, 228 F.3d at 748).

Manjate’s convictions can hardly be deemed invalid merely because the prosecutor failed to charge

other crimes which could have been proven by the evidence presented. Id.

         Although Manjate argues that the jury’s consideration of evidence of activities outside the

charged conspiracies resulted in unfair prejudice, he has failed to specifically identify what the unfair

prejudice is. He has failed to demonstrate that any variance undermined the purposes of the

indictment. He has not demonstrated that any of the evidence was admitted in clear error, and has

shown neither that his substantial rights were affected nor that “the fairness, integrity or public

reputation” of the trial was seriously impugned. Manjate has not made the requisite showing of plain

error.




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United States v. Manjate and Lewis
       IV. Prosecutorial Misconduct (Manjate)

       Manjate also contends he was denied his right to a fair trial because the prosecuting attorney

attempted to impeach him on cross-examination by reference to a 2000 misdemeanor conviction, in

direct violation of an express ruling by the district court. Again, because this objection was not

made in the form of a motion for mistrial or other relief that was denied by the district court, we

review for plain error. United States v. Rose, 522 F.3d 710, 716 (6th Cir. 2008). Prosecutorial

misconduct—not merely some error by the prosecutor, but misconduct—warrants relief only if it was

flagrant and is shown to have resulted in prejudice. Id.; United States v. Coker, 514 F.3d 562, 568

(6th Cir. 2008).

       Here, Manjate has shown no more than mere error, hardly flagrant in nature, and has not

demonstrated prejudice. Yes, prior to cross-examination, the district court had expressly ruled that

the federal prosecutor, the Assistant U.S. Attorney, was prohibited from inquiring into Manjate’s

2000 misdemeanor conviction for possession of marijuana. The court ruled that the probative value

of the evidence was clearly outweighed by danger of unfair prejudice. Yes, on cross-examination,

the AUSA asked a question of Manjate which elicited, whether deliberately or inadvertently, an

answer that contravened the court’s limine ruling. Specifically, he asked, “Did you ever have any

drugs in your car ever?” Defense counsel did not object to the question. Manjate answered, “In

2000, I had an incident where it was a misdemeanor.” Even then, defense counsel did not object.

Rather, it was the AUSA who, in a sidebar conference, proposed that Manjate, through his answer,

had opened the door to use of the misdemeanor conviction for impeachment purposes. Defense



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Nos. 07-1652, 07-1711
United States v. Manjate and Lewis
counsel objected and asked the court to enforce its limine ruling by prohibiting any further

questioning relating to the 2000 incident. The court agreed, offering to strike Manjate’s answer from

the record. Defense counsel declined the offer, preferring not to bring any more attention to the

matter. Trial tr. pp. 1381-83, JA 1664-66.

       On its face, there is nothing improper in the AUSA’s questioning. Manjate could have

answered the question truthfully without mentioning the misdemeanor conviction. We can thus

hardly rule that the AUSA engaged in misconduct. Yet, even if he deliberately baited Manjate into

disclosing the protected information, it was Manjate who volunteered it. The court and counsel then

worked cooperatively to isolate the solitary remark and limit any damage. Hence, even if Manjate

has identified an instance of prosecutorial misconduct, it can hardly be characterized as flagrant.

Nor has it been shown to have resulted in such unfair prejudice as to affect Manjate’s substantial

rights and deprive him of a fair trial. Again, Manjate has failed to show plain error.

       V. Acceptance of Responsibility (Lewis)

       Defendant Lewis contends the district court erred in its calculation of the appropriate

advisory Sentencing Guidelines range by refusing to give him credit for acceptance of responsibility

for his wrongdoing. U.S.S.G. § 3E1.1(a). He contends his admission of guilt in relation to seven

of the charged offenses is clear evidence of his acceptance of responsibility. Yet, Lewis did not ask

for acceptance-of-responsibility credit in the district court and did not object to the presentence

report recommendation that no credit be given. Lewis did object to the court’s obstruction-of-justice




                                               - 12 -
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United States v. Manjate and Lewis
enhancement, but the objection was overruled because the district court found by a preponderance

of the evidence that Lewis testified falsely that he was not involved in a conspiracy with Manjate.

       Ordinarily, we review the district court’s acceptance-of-responsibility determination,

presenting a factual inquiry, only for clear error. United States v. Brown, 367 F.3d 549, 556 (6th Cir.

2004). Even when the determination is based on uncontested facts, the district court’s decision is

reviewed with deference, not de novo. Id. Here, however, inasmuch as Lewis did not even ask for

an acceptance-of-responsibility reduction, we review for plain error and may grant relief only on a

showing that the error was so plain and obvious that the district court was derelict in not correcting

it sua sponte.

       Lewis’s position amounts to the argument that because he admitted guilt to some of the

charged offenses, he is entitled to credit for acceptance of responsibility as a matter of law, even

though he was found to have testified falsely regarding other counts. Lewis is plainly wrong.

Conduct resulting in an obstruction-of-justice enhancement under U.S.S.G. § 3C1.1 is ordinarily

deemed to indicate a failure to accept responsibility. United States v. Jeross, 521 F.3d 562, 581 (6th

Cir. 2008). However, there may be extraordinary circumstances in which both an obstruction of

justice enhancement and an acceptance of responsibility reduction may apply. Id. Where obstruction

of justice has occurred, defendant has the burden of proving the extraordinary nature of his case.

       Lewis has not carried this burden. Quite to the contrary, the facts show that Lewis’s

obstructive conduct, perjury, as found by the district court, continued during trial even after he had

admitted his guilt in relation to some of the charges. Under such circumstances, credit for



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United States v. Manjate and Lewis
acceptance of responsibility is consistently denied. See id. at 582; United States v. Angel, 355 F.3d

462, 478 (6th Cir. 2004). Accordingly, we reject Lewis’s claim that the district court’s denial of

credit for acceptance of responsibility was plain error.

       VI. Drug Quantity Calculations (Manjate)

       Defendant Manjate challenges the district court’s findings regarding the quantities of heroin

and cocaine he was responsible for. He contends essentially that the court erred by relying on the

uncontested presentence report estimates that he was responsible for distributing 559.75 grams of

heroin and 1.7 kilograms of cocaine. Manjate acknowledges that these estimates were based largely

on trial testimony, but contends it was error for the court to adopt estimates consisting of “rough

guesses” from witnesses whose credibility was questionable. He acknowledges that because no

objection was asserted below, this matter, too, is reviewed only for plain error. See United States

v. Treadway, 328 F.3d 878, 883 (6th Cir. 2003). In fact, not only did Manjate refrain from asserting

any objection to drug quantities at sentencing, but his attorney affirmatively waived objection,

saying, “I don’t believe the quantity is an issue.” Sent. tr. p. 3, JA 1860.

       Clearly, the district court’s reliance on quantity approximations was not inappropriate.

United States v. Hernandez, 227 F.3d 686, 699 (6th Cir. 2000). Estimates suffice as long as they are

supported by a preponderance of the evidence. Jeross, 521 F.3d at 570. Testimonial evidence from

other coconspirators may be a reliable and sufficient basis for drug quantity determinations. Id. The

district court’s credibility determinations are entitled to great deference. Id. We are thus in no

position to second-guess the district court’s assessment of these matters—much less find plain


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United States v. Manjate and Lewis
error—where defendant Manjate (a) declined to even meet with the probation officer who prepared

the presentence report, (b) failed to object and even waived his right to object to the estimated drug

quantities at sentencing, and (c) has failed to identify any evidence that refutes the evidence relied

on by the district court in adopting the uncontested quantities proposed in the presentence report.

Manjate’s untimely and unsupported drug quantity objection is therefore overruled.

       VII. Reasonableness of Sentences (Manjate and Lewis)

       Both defendants challenge their sentences as unreasonable. We review the district court’s

sentencing judgments under the deferential “abuse of discretion” standard, evaluating both their

procedural and substantive reasonableness. Gall v. United States, —U.S.—, 128 S.Ct. 586, 591, 598

(2007). A district court will be deemed to have abused its discretion if it committed significant

procedural error, “such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 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. at 597. The

standard for evaluating whether a sentence is substantively unreasonable is summarized in Gall as

follows:

       When conducting this review, the court 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. [Rita v. United States, 551 U.S.
       338, 127 S.Ct. 2456, 2462-68, 168 L.Ed.2d 203 (2007)]. But if the sentence is
       outside the Guidelines range, the court may not apply a presumption of
       unreasonableness. It may consider the extent of the deviation, but must give due
       deference to the district court's decision that the § 3553(a) factors, on a whole, justify

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United States v. Manjate and Lewis
        the extent of the variance. The fact that the appellate court might reasonably have
        concluded that a different sentence was appropriate is insufficient to justify reversal
        of the district court.


Gall, 128 S.Ct. at 597. In the Sixth Circuit, we accord a rebuttable presumption of reasonableness

to sentences within the properly calculated Guidelines range. United States v. Vonner, 516 F.3d 382,

389 (6th Cir. 2008).

        A. Lewis’s Sentence

        Defendant Lewis was sentenced to 420 months in prison. He contends the sentence is

procedurally unreasonable because the district court did not properly consider the § 3553(a) factors.

He contends the sentence is substantively unreasonable because it is greater than necessary to

comply with the purposes of sentencing. Both arguments ignore the fact that the district court

imposed the shortest term of imprisonment that it could within its lawful discretion, 35 years, the

very sentence which Lewis’s counsel asked the court to impose at sentencing. The district court

duly calculated the applicable Guidelines range to be 78 to 97 months. Based on the crimes of

conviction, however, the court had no authority to impose a sentence below the applicable statutory

mandatory sentencing minimums, because the exceptions recognized at 18 U.S.C. § 3553(e) and

(f) do not apply. See United States v. Branch, 537 F.3d 582, 594-95 (6th Cir. 2008); United States

v. Franklin, 499 F.3d 578, 585-86 (6th Cir. 2007); United States v. Burke, 237 F.3d 741, 744 (6th

Cir. 2001). The resulting sentence is undeniably long, but this is a product of legislative judgment,

not judicial discretion.




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       B. Manjate’s Sentence

       Defendant Manjate received a prison sentence of 224 months. He contends the sentence is

procedurally unreasonable because the district court improperly calculated the applicable advisory

Guidelines range to be 188 to 235 months based on erroneous drug quantity determinations. As

explained above, Manjate has failed to demonstrate any error in the district court’s drug quantity

determinations. It follows that his procedural unreasonableness challenge is meritless.

       Manjate also contends his sentence is substantively unreasonable because the district court,

in considering the § 3553(a) factors, placed inordinate weight on his lack of remorse and on the

social ills that flow from the illegal drug trade generally. Manjate maintains that a prison sentence

at the low end of the applicable advisory Guidelines range, rather than in the upper half, would, in

the words of the parsimony clause, 18 U.S.C. § 3553(a), be “sufficient, but not greater than

necessary” to comply with the purposes of sentencing.

       Manjate’s sentence is within the properly calculated advisory Guidelines range and is

therefore subject to a rebuttable presumption of reasonableness. Vonner, 516 F.3d at 389. This

presumption is not rebutted by a defendant’s mere argument that a shorter prison sentence would

be sufficient. United States v. Ward, 506 F.3d 468, 478-79 (6th Cir. 2007); United States v. Dexta,

470 F.3d 612, 616 (6th Cir. 2006). Nor are we persuaded, upon review of the sentencing record,

that the district court improperly weighed such factors as Manjate’s lack of remorse and the

destructive consequences of drug trafficking on individual lives, families, and whole communities.

Such considerations come squarely within the ambit of such § 3553(a) factors as “the nature and


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Nos. 07-1652, 07-1711
United States v. Manjate and Lewis
circumstances of the offense and the history and characteristics of the defendant;” as well as the

need for the sentence imposed “to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense,” “to afford adequate deterrence to criminal

conduct,” and “to protect the public from further crimes of the defendant.” Accordingly, we reject

Manjate’s substantive unreasonableness challenge.

       VIII. Conclusion

       For the reasons stated above, we find no merit in any of defendants’ claims of error. Their

convictions and sentences are therefore AFFIRMED.




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