                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1067n.06

                                           No. 11-6296                                 FILED
                                                                                    Oct 10, 2012
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )   ON APPEAL FROM THE UNITED
v.                                               )   STATES DISTRICT COURT FOR THE
                                                 )   MIDDLE DISTRICT OF TENNESSEE
JOSEPH M. CARTER,                                )
                                                 )
       Defendant-Appellant.                      )



       Before: SILER and COOK, Circuit Judges; STEEH, District Judge*


       COOK, Circuit Judge. Defendant Joseph Carter appeals his sentence of 240 months’

imprisonment, arguing that the district court erred by overestimating his drug-quantity and failing

to address his four arguments for a downward variance. We affirm.


                                                I.


       Carter pleaded guilty to conspiring to manufacture and distribute MDMA in violation of 21

U.S.C. §§ 841(a)(1) and 846. Although the indictment did not specify the amount of drugs involved

in the conspiracy, the government provided an estimate of 720 ounces during Carter’s plea hearing.

Using this drug-quantity estimate, Carter’s Presentence Investigation Report (“PSR”) calculated a



       *
       The Honorable George Caram Steeh, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 11-6296
United States v. Carter


Guidelines range of 360 months to life, but limited that range to the statutory maximum of 240

months. 21 U.S.C. § 841(b)(1)(C).


       Carter objected to the PSR’s drug-quantity calculation. He also sought a 120-month

downward variance, arguing that: (1) the Guidelines range overstated his culpability; (2) his

attempted cooperation with the government warranted a reduced sentence; (3) his history of mental

illness mitigated his wrongful conduct; and (4) the MDMA Guidelines lacked empirical support.


       At sentencing, the government presented three witnesses, along with photographic evidence

of Carter’s MDMA laboratory, to support its drug-quantity estimate. The first witness, Noel Vadell,

a chemist for the DEA, testified regarding Carter’s use of safrole oil to manufacture MDMA. He

recounted several conversations between Carter and the DEA, where the defendant admitted to

acquiring one liter of safrole oil per month for nine months. Using an eighty percent conversion rate,

Vadell estimated that nine liters of safrole oil would produce around 400 ounces of MDMA. Carter

disputed this figure, arguing for a fifty percent conversion rate.


       DEA Special Agent Matthew Chance testified regarding a controlled phone call he arranged

between Carter and Jeremy Wright, a co-conspirator-turned-informant. During the recorded

conversation, Carter said he “could have ready, possibly the following day, three or four ounces” of

MDMA, and as much as sixteen ounces within a week. Agent Chance also recounted a conversation

he had with Carter following the DEA’s search of his home, where Carter admitted producing

“around six to ten ounces” of MDMA per week. Wright’s testimony corroborated this information,

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United States v. Carter


adding that he would purchase from Carter “anywhere between two to eight ounces, around two or

three times a month.” Wright also stated that Carter’s associates and girlfriend continued to supply

him with MDMA while Carter was in prison, though it “wasn’t the same product.”


       Given the opportunity, Carter offered no rebuttal to contradict the government’s evidence.

The district court then overruled his objections and adopted the PSR’s sentence recommendation.

The court explained, “I am imposing this [sentence] I think this is a fair, appropriate sentence,

considering your criminal history, that—and that your previous conviction and your continuing not

learning your lesson from the previous conviction, so this is for specific deterrence and general

deterrence.”


       Carter now appeals.


                                                 II.


       Carter challenges both the district court’s drug-quantity estimate and the reasonableness of

his sentence. We review the first of these claims for clear error. See United States v. Jeross, 521

F.3d 562, 570 (6th Cir. 2008); United States v. Sandridge, 385 F.3d 1032, 1037 (6th Cir. 2004). In

the absence of government seizure of drugs from the defendant, “it is the duty of the District Court

to estimate the amount.” United States v. Zimmer, 14 F.3d 286, 290 (6th Cir. 1994) (internal citations

omitted). The evidence underlying this approximation must “have a minimal level of reliability

beyond mere allegation.” Sandridge, 385 F.3d at 1037 . To this end, the court may consider


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United States v. Carter


“circumstantial evidence,” United States v. Gauna, No. 10-6193, 2012 WL 2217051, at *3 (6th Cir.

June 18, 2012) (citing United States v. Elder, 90 F.3d 1110, 1127 (6th Cir. 1996)), including “similar

transactions in controlled substances by the defendant, and the size or capability of any laboratory

involved,” Sandridge, 385 F.3d at 1037.


       We also review the district court’s sentence for reasonableness, which has both procedural

and substantive components. Gall v. United States, 552 U.S. 38, 51 (2007). The Supreme Court in

Gall defined procedural error as “failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id.

Procedural reasonableness, however, does not require the district court to address “any and all

arguments” for alternative sentences, United States v. Vonner, 516 F.3d 382, 387 (6th Cir. 2008) (en

banc), so long as the context and record “‘make clear’ the court’s reasoning,” United States v. Liou,

491 F.3d 334, 339 n.4 (6th Cir. 2007) (quoting Rita v. United States, 551 U.S. 338, 357 (2007)).


       Though Carter specifically mentions only the procedural reasonableness of his sentence, to

the extent that some of his arguments border on a substantive challenge, out of an abundance of

caution, we review such claims for abuse of discretion. Liou, 491 F.3d at 337 (noting that the

“border between factors properly considered ‘substantive’ and those properly considered

‘procedural’ is blurry if not porous”) (internal citations omitted). “A sentence is substantively

unreasonable if the district court selects a sentence arbitrarily, bases the sentence on impermissible


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United States v. Carter


factors, fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to

any pertinent factor.” United States v. Camiscione, 591 F.3d 823, 832 (6th Cir. 2010) (internal

citation and quotation marks omitted). Reviewing courts may “credit[] sentences properly calculated

under the Guidelines with a rebuttable presumption of reasonableness.” United States v. Williams,

436 F.3d 706, 708 (6th Cir. 2006); see Rita, 551 U.S. at 347.


A.     Drug-Quantity Estimate


       Carter first challenges the sufficiency of the drug-quantity evidence. He asserts that the

government misstated Wright’s testimony by arguing that Carter gave him between six to eight

ounces of MDMA around two to three times per month when Wright actually testified that the range

was “between two to eight ounces.” Regardless of what Wright said, the court also heard Agent

Chance testify that “[Wright] said he was receiving approximately six to eight ounces a week.” A

district court is free to give greater emphasis to one witness’s statement over that of another.

Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) (“[W]hen a trial judge’s finding is

based on his decision to credit the testimony of one of two or more witnesses, each of whom has told

a coherent and facially plausible story . . . that finding . . . can virtually never be clear error.”);

Jeross, 521 F.3d at 570 (“We ‘afford the district court’s credibility determinations regarding witness

testimony great deference.’”) (quoting United States v. Esteppe, 483 F.3d 447, 452 (6th Cir. 2007)).

Thus, Carter’s first evidentiary challenge lacks merit.




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        As for Carter’s challenge to the adequacy of the evidence underpinning the estimates, the

district court had the expert’s testimony and multiple photographs of Carter’s MDMA laboratory.

It could properly rely on this evidence regarding the capacity of Carter’s drug laboratory when

assessing drug quantities. The government’s expert, in addition to his own observations of the lab,

relied on Carter’s admissions in making his conversion estimate, upon which the district court relied.

Regarding the glassware in Carter’s lab, the expert testified that he agreed with the government’s

assessment that it was “lab grade glassware,” also noting further that Carter’s “chemistry knowledge

is very impressive” and that he “[knew] what he[] [was] doing.” Carter offered no contrary evidence

in rebuttal.


        Carter also argues that a “conservative estimate” should take the following into account: (1)

thirteen months Carter spent in prison for violating his supervised release; (2) winter months when

there is limited access to safrole oil; (3) variations in production (so-called “weak” versus “strong”

weeks); and (4) early weeks in the conspiracy without MDMA production. The court heard

sufficient testimony to reject this first argument. The government specifically asked Wright whether

he had received any MDMA “from anyone working with [Carter]” while Carter was in prison.

Wright answered in the affirmative, adding that his suppliers during this time “would vary.” He also

specifically identified Carter’s girlfriend and William Sharpton, another member of the conspiracy

whom Carter had taught how to process safrole oil, among his list of suppliers around this period.

Since both Carter’s girlfriend and Sharpton participated in the conspiracy under Carter’s leadership,

their production attaches to Carter. See United States v. Jennings, 83 F.3d 145, 150 (6th Cir. 1996).

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United States v. Carter


        Carter’s last three arguments merely restate the same issue. Carter challenges the district

court’s findings regarding the rate and duration of MDMA production (thirty ounces per month for

twenty-four months). Even if we accept Carter’s assertion that his production varied from week to

week, the government’s evidence supports a range of twenty-four to forty ounces per month. The

government expressly selected an average of thirty ounces per month as being “the lower end” of the

drug-output range, providing a “conservative estimate” of the total amount. As the government

noted during Carter’s sentencing, taking “the high end [of the estimate] . . . say forty ounces a week

for the full three years, [would give an estimate] into the thousands of ounces.” Finally, the

government discounted an entire year from its quantity calculations, to account for the early weeks

of the conspiracy and the months when Carter’s absence prompted lower production.


B.      Reasonableness


        Carter also argues that the district court failed to address each of his four arguments for a

downward variance, detailed in his sentencing memorandum and repeated at sentencing. To support

his procedural unreasonableness charge, Carter cites our decision in United States v. Thomas, 498

F.3d 336 (6th Cir. 2007). There, the district court did nothing more than acknowledge receipt of the

defendant’s sentencing memorandum, without mentioning any of his arguments for a reduced

sentence, which “le[ft] us unsure as to whether the district court . . . misconstrued, ignored, or forgot

[the defendant’s] argument.” Id. at 341. We noted that the relevant 3553(a) factors, “went

unmentioned and unaddressed.” Id. In doing so, we contrasted the Thomas case with Rita, where


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the Supreme Court found that a district court’s repetition of the defendant’s “conceptually simple

arguments” presented an adequate, “though brief,” explanation, Rita, 551 U.S. at 356.


       A contextual analysis of the district court’s statements shows that it adequately considered

Carter’s arguments and satisfactorily explained its sentence. After hearing witness testimony

regarding drug quantity, the court rejected Carter’s objections to the PSR. The court invited both

the prosecution and defense to summarize their positions regarding the relevant sentencing issues,

asking the government to respond to Carter’s cooperation arguments. The court questioned the

government further, gleaning from it an opposition to downward departure.


       Having heard all the arguments surrounding Carter’s sentencing factors, in addition to

substantial evidence supporting the government’s drug-quantity estimate, the court sentenced Carter

to 240 months’ imprisonment. Notably, the court’s sentence also required that Carter participate in

substance abuse treatment and a mental health program, belying the defendant’s claims that the court

failed to consider his mental illness argument. Upon the government’s request for clarification, the

court repeated that it had overruled Carter’s objections and confirmed it had adopted the PSR’s

calculations, including “the base offense level of 36, the leadership role increase of four levels, and

the unlawful discharge increase of two levels.”


       Finally, the sentencing court emphasized the need for deterrence, citing the defendant’s

failure to “learn[] . . . from the previous conviction,” and explained its sentence as a means of

achieving both “specific deterrence and general deterrence.” The court expressed disapproval of

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United States v. Carter


Carter’s recidivism and the fact that Carter began manufacturing MDMA while on probation for

near-identical charges. The court’s multiple references to Carter’s “criminal history” and its

declaration that Carter had not learned his lesson reflect an adequate consideration of the second §

3553(a) factor. The record satisfies us that the court considered the defendant’s objections, overruled

them, and stated its reasons for its sentence.


                                                 III.


       We AFFIRM the judgment of the district court.




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