                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0601n.06

                                           No. 08-5495                                    FILED
                                                                                      Sep 10, 2010
                          UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,           )
                                    )                         ON APPEAL FROM THE
            Plaintiff-Appellee,     )                         UNITED STATES DISTRICT
                                    )                         COURT FOR THE EASTERN
v.                                  )                         DISTRICT OF KENTUCKY
                                    )
JOHN DOUGLAS WHELAN, JR.,           )
                                    )
            Defendant-Appellant.    )
____________________________________)


BEFORE:        SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*

       Jonker, District Judge. John Douglas Whelan, Jr. appeals the sentence entered following

his guilty plea to criminal charges involving distribution of OxyContin pills. Mr. Whelan contends

the district court erred in determining the number of OxyContin pills attributable to him, and as a

result erred in calculating his base offense level. Mr. Whelan further contends that the sentence the

district court imposed was substantively unreasonable.

                              Factual and Procedural Background

       In August of 2007, an informant told law enforcement officials that he had sold OxyContin

tablets to Mr. Whelan on a regular basis for the past twelve to eighteen months. (R.27: Presentence

Investigation Report (“PSR”) at ¶ 11.) The informant stated that he usually sold between three and

four hundred OxyContin tablets to Mr. Whelan every two weeks. (Id.) The informant added that

       *
       The Honorable Robert J. Jonker, United States District Judge for the Western District of
Michigan, sitting by designation.
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United States v. Whelan                          2

Mr. Whelan’s largest single purchase of OxyContin tablets from him was for 900 tablets. (Id.) The

same informant later told law enforcement officials that since approximately July, 2006, he had sold

Mr. Whelan an average of 200 to 300 OxyContin tablets per week at an average of $33.00 per tablet,

and that over the course of their relationship, Mr. Whelan had paid the informant over $200,000 in

cash. (Id. at ¶ 12.) Working with law enforcement, the informant contacted Mr. Whelan and

arranged a sale of 1,000 OxyContin tablets. (Id. at ¶¶ 14-15.) When Mr. Whelan arrived to make

the purchase, law enforcement officials arrested him and found $33,940 in cash in his possession.

(Id. at ¶ 16.) Mr. Whelan admitted that he had come with cash to purchase 1,000 OxyContin tablets.

(Id. at ¶ 17.) Mr. Whelan also admitted that he had in the past made five other purchases of

OxyContin tablets, each time purchasing 500 80mg OxyContin tablets. (Id.)

       On September 13, 2007, a federal grand jury indicted Mr. Whelan on three criminal counts.

(R. 10: Indictment.) Count One charged conspiracy to distribute a quantity of pills containing a

detectable amount of oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Id.) Count 2

charged attempt to possess with the intent to distribute a quantity of pills containing a detectable

amount of oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Id.) Count 3 was a count

for forfeiture under 21 U.S.C. § 853. Mr. Whelan pleaded guilty to all counts without a plea

agreement, and judgment against him was entered on February 27, 2008. (R. 24: Judgment.)

       The PSR notes that Mr. Whelan’s own admissions indicate that he sought to purchase 1,000

OxyContin tablets the day of his arrest and that he had previously purchased 2,500 OxyContin

tablets. (R. 27: PSR, ¶ 18.) Based on those admissions alone, Mr. Whelan would be held

accountable for 3,500 80mg OxyContin tablets, with a marijuana equivalency of 1,876 kilograms
No. 08-5495
United States v. Whelan                           3

of marijuana. (Id.) The PSR points out further, though, that the informant’s statements indicated

that Mr. Whelan had purchased OxyContin from the informant over an extended period of time and

that Mr. Whelan had provided the informant with approximately $200,000 in cash during the

conspiracy, at $33.00 per tablet. (Id.) Using the calculation it describes as most beneficial to

Mr. Whelan, the PSR divides $200,000 by 33 and determines that Mr. Whelan in the past purchased

approximately 6,060 80mg OxyContin tablets. (Id.) Adding the 1,000 tablets Mr. Whelan attempted

to purchase on the day of his arrest to the 6,060, the PSR concludes that Mr. Whelan is accountable

for 7,060 80mg OxyContin tablets, with a marijuana equivalency of 3,784.16 kilograms. (Id.)

       At sentencing, Mr. Whelan objected to the number of OxyContin tablets the PSR attributed

to him in determining his base offense level. (R. 32: Transcript, at 4.) In particular, he objected to

the PSR’s reliance on the statement by the informant that he had received over $200,000 over the

past twelve to eighteen months from Mr. Whelan. (Id.) Mr. Whelan argued that only the 3,500

tablets to which he had admitted should be considered in determining his base offense level. (Id. at

14.) Mr. Whelan did not object to the formula the PSR applied to calculate the number of tablets.

(Id. at 4.) Nor did Mr. Whelan object to any of the facts stated in the PSR. (Id. at 7–8, 10–11.)

       The district judge carefully considered Mr. Whelan’s objection to the number of OxyContin

tablets attributed to him and the resulting base offense level. (Id. at 12–16.) The judge observed that

in determining the applicable offense level, courts consider, among other things, “all acts and

omissions that were part of the same course of conduct or common scheme or plan as the offense

of conviction,” including “relevant conduct of additional drug quantities that are not charged in the

indictment.” (Id. at 13 (citing U.S.S.G. § 1(B)1.3(a)).) The judge explained that “[b]ecause there
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United States v. Whelan                           4

was no seizure of actual drugs at issue, I may, in considering the appropriate base offense level,

approximate the amount and the price of those drugs using similar transactions that have been

conducted by the defendant.” (Id. (citing U.S.S.G. § 2(D)1.1, cmt. n. 12).) Weighing various factors,

including without limitation that (1) Mr. Whelan had agreed to forfeit proceeds of drug trafficking

activity for a total of $250,000; (2) the informant stated that he had received $200,000 or more over

the course of the year; (3) the forfeiture count included $33,940 in cash found in Mr. Whelan’s

possession on his trip to purchase 1,000 tablets; and (4) the informant stated that he charged $33 per

pill, the judge found it reasonable to conclude that the approximate price per pill was $33. (Id. at

14–15.) The judge found it likely that Mr. Whelan had purchased during the conspiracy at least

6,060 pills, including the 2,500 tablets for which Mr. Whelan accepted responsibility. (Id. at 15.)

Adding the 1,000 tablets Mr. Whelan intended to purchase the day of his arrest, the judge ruled that

“[t]he quantity attributable to Mr. Whelan will be 7,060, 80 milligram oxycodone pills.” (Id. at 16.)

The judge thus overruled Mr. Whelan’s objection. (Id.) Further, the judge explicitly accepted and

adopted the findings in the PSR, including the guideline calculations. (Id. at 17.) After discussing

the sentencing factors and giving the parties an opportunity to address the court, the judge imposed

a sentence of 152 months on each of Counts I and II, to be served concurrently. (Id. at 19–37.) The

sentence fell within the middle of the advisory Guidelines range, which stretched from 135 to 168

months. (Id. at 21.)
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United States v. Whelan                            5

                                               Analysis

       1.      The district court did not clearly err in calculating Mr. Whelan’s base Guidelines
               offense level.

       A clearly erroneous standard of review applies to the district court’s factual findings. United

States v. McGee, 494 F.3d 551, 554 (6th Cir. 2007). “A factual finding is clearly erroneous ‘when

the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake

has been committed.’” Id. (quoting Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir. 2006)). Findings

of facts crucial to the determination of a defendant’s base offense level must be made by a

preponderance of the evidence. United States v. Walton, 908 F.2d 1289, 1301–02 (6th Cir. 1990).

In making such factual findings, courts consider, among other things, “all acts . . . committed . . . by

the defendant . . . during the commission of the offense of conviction [or] in preparation for that

offense.” U.S.S.G. § 1B1.3(a)(1)(A)-(B). If no drugs have actually been seized in connection with

a drug offense, the sentencing court must approximate the quantity of drugs attributable to the

defendant. Id. at § 2D1.1 cmt. n.12; accord Walton, 908 F.2d at 1301–02. “[H]ere also a

preponderance of the evidence must support the estimate.” Walton, 908 F.2d at 1301–02. A court

“choosing between a number of plausible estimates of drug quantity, none of which is more likely

than not the correct quantity, . . . must err on the side of caution.” Id. at 1302. “A court’s

approximation of the amount of drugs involved in a particular case is not clearly erroneous if

supported by competent evidence in the record.” United States v. Edward Lee Mahaffey, 53 F.3d

128, 132 (6th Cir. 1995) (quoting United States v. Brannon, 7 F.3d 516, 520 (6th Cir. 1993)

(abrogated on other grounds by Pub. L. No. 106-310, §§ 3601-3673, 114 Stat. 1102, 1227-46

(2000)).
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United States v. Whelan                            6

        The Court sees no clear error in the district court’s approximation of the quantity of drugs

attributable to Mr. Whelan. Mr. Whelan raised no objection to the facts set forth in the PSR, and the

district court was entitled to accept those facts as true. FED . R. CRIM . P. 32(i)(3)(A); accord United

States v. Carter, 355 F.3d 920, 925-26 (6th Cir. 2004). Competent evidence supports the district

court’s finding that Mr. Whelan was responsible for 7,060 OxyContin tablets. Mr. Whelan pleaded

guilty to a criminal forfeiture of $250,000 representing proceeds from the drug trafficking activities

with which he was charged. (R. 24: Judgment.) The informant advised law enforcement that he had

received over $200,000 in cash from Mr. Whelan. (R. 27: PSR, at ¶ 12.) The informant stated that

on average, he sold Mr. Whelan OxyContin tablets for $33.00 each. (Id. at ¶ 12.) This price per pill

is consistent with the amount of cash, over $33,000, Mr. Whelan had brought with him to pay for

1,000 tablets. (See id. at ¶ 16.) Mr. Whelan did not present any evidence to contradict the

informant’s statement that Mr. Whelan paid him over $200,000 over the course of more than a year,

and no evidence to contradict the informant’s statement that Mr. Whelan typically paid him $33 per

OxyContin tablet. Indeed, Mr. Whelan raised no objection to the facts in the PSR.

        In calculating the quantity of OxyContin attributable to Mr. Whelan, the district court actually

erred on the side of caution and gave the defendant the benefit of the doubt. See Walton, 908 F.2d

at 1301–02. Through his guilty plea, Mr. Whelan acknowledged $250,000 in proceeds related to the

drug offenses with which he was charged. However, the Court did not use this number in calculating

the quantity attributable to Mr. Whelan, but rather used the lower $200,000 figure the informant had

provided. Similarly, the district court did not rely on the informant’s estimates of the number of

OxyContin tablets Mr. Whelan had purchased from him over the course of the conspiracy to which
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United States v. Whelan                            7

Mr. Whelan pleaded guilty. At one point, the informant stated that Mr. Whelan had purchased 300

to 400 OxyContin tablets from him every two weeks for over a year. Had the district court relied

on that statement in making its calculations, it would have found, at a minimum, 7,800 OxyContin

tablets (300 x 26) attributable to the defendant, plus an additional 1,000 tablets Mr. Whelan had

intended to purchase the day of his arrest. At another point, the informant stated that Mr. Whelan

had purchased approximately 200 to 300 OxyContin tablets per week for over a year. Had the

district court relied on this statement, it would have attributed at least 10,400 OxyContin tablets (200

x 52) to the defendant. Instead, the trial court opted for the more conservative and fully supported

calculation.

       2.      The district court’s sentence of Mr. Whelan was reasonable.

       The Court reviews the district court’s sentencing decision for reasonableness. United States

v. McGee, 494 F.3d 551, 554 (6th Cir. 2007). “The question of whether a sentence is reasonable is

determined using the abuse-of-discretion standard of review.” United States v. Carter, 510 F.3d 593,

600 (6th Cir. 2007) (citing Gall v. United States, 552 U.S. 38, 46, 47 (2007)). “[D]istrict courts have

considerable discretion in this area and thus deserve the benefit of the doubt when we review their

sentences and the reasons given for them.” United States v. Vonner, 516 F.3d 382, 392 (6th Cir.

2008) (en banc). “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, 552 U.S. at

51.

       A review for reasonableness has both substantive and procedural components. Carter, 510

F.3d at 600 (citing Gall, 552 U.S. at 49-51). Mr. Whelan does not challenge the procedural aspects
No. 08-5495
United States v. Whelan                          8

of his sentence, but argues only that his sentence is substantively unreasonable. (Appellant’s Br. at

14.)   The Court considers the totality of the circumstances in reviewing the substantive

reasonableness of a sentence. Gall, 552 U.S. at 51. A rebuttable presumption of reasonableness

applies to sentences properly calculated under the Guidelines. Vonner, 516 F.3d at 389-90; see also

Rita v. United States, 551 U.S. 338, 347 (2007) (upholding presumption of reasonableness for

within-guidelines sentences).

       Mr. Whelan’s claim that his sentence is substantively unreasonable fails. The sentence was

within the properly calculated Guidelines range, entitling the sentence to a presumption of

reasonableness. Vonner, 516 F.3d at 389-90. Mr. Whelan does not argue that the district court

imposed the sentence arbitrarily, based the sentence on impermissible factors, failed to consider any

pertinent factor under 18 U.S.C. § 3553(a), or gave an "unreasonable amount of weight to a pertinent

factor." United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009) (listing situations in which a

sentence is considered substantively unreasonable) (quotation omitted). Mr. Whelan argues simply

that although the district court reviewed the appropriate sentencing factors under 18 U.S.C.

§ 3553(a), the district court should have weighed the factors differently and imposed a shorter

sentence. (Appellant’s Br. at 14–15.) Mr. Whelan presents no reasons why the district court should

have weighed the factors differently.       Mr. Whelan has not rebutted the presumption of

reasonableness of the length of the sentence and has shown no abuse of discretion on the part of the

district court. The sentence of the district court was reasonable.
No. 08-5495
United States v. Whelan                    9

                                       Conclusion

       For these reasons, we AFFIRM.
