                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0237n.06

                                          No. 15-6155

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                                Apr 26, 2017
UNITED STATES OF AMERICA,                             )                    DEBORAH S. HUNT, Clerk
                                                      )
         Plaintiff-Appellee,                          )
                                                      )   ON APPEAL FROM THE UNITED
v.                                                    )   STATES DISTRICT COURT FOR
                                                      )   THE WESTERN DISTRICT OF
HUNTER ELLS,                                          )   TENNESSEE
                                                      )
         Defendant-Appellant.                         )
                                                      )
                                                      )


         BEFORE: SUHRHEINRICH, WHITE, and STRANCH, Circuit Judges.

         PER CURIAM. Hunter Ells appeals his sentence for methamphetamine conspiracy. As

set forth below, we affirm.

         A federal grand jury charged Ells and eleven others with various methamphetamine

offenses. (RE 4, Indictment, Page ID ## 15-25; RE 133, First Superseding Indictment, Page ID

## 167-77). Ells subsequently pleaded guilty without a written plea agreement to conspiracy to

possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and

846. (RE 241, 5/6/15 Minute Entry; RE 430, 5/6/15 Change of Plea Tr., Page ID ## 997-98;

1010).

         At sentencing, after hearing testimony from the case agent and Ells, the district court

attributed to Ells 52.92 grams of pseudoephedrine1 and three-quarters of an ounce of “ice,”2


1
 Pseudoephedrine is a key ingredient used in the manufacture of methamphetamine. Legal
Requirements for the Sale and Purchase of Drug Products Containing Pseudoephedrine,
No. 15-6155, United States v. Ells

corresponding to a base offense level of 26. (Presentence Report ¶¶ 16, 23; RE 403, 9/25/15

Sentencing Tr., Page ID ## 859-60). Ells received a two-level increase for obstruction of justice

for threatening a co-defendant and failing to appear for court. (Presentence Report ¶ 27; RE 403,

9/25/15 Sentencing Tr., Page ID # 845). See USSG § 3C1.1. Based on a total offense level of

28 and a criminal history category of IV, the district court calculated Ells’s guidelines range as

110 to 137 months. (RE 403, 9/25/15 Sentencing Tr., Page ID ## 859-60). Considering the

sentencing factors in 18 U.S.C. § 3553(a), the district court varied downward from that range

and sentenced Ells to 96 months of imprisonment. (Id. Page ID # 911; RE 390, Judgment, Page

ID # 646).

       Pursuant to Federal Rule of Criminal Procedure 35, Ells moved to correct his sentence,

asserting that, in light of the district court’s rulings at sentencing, he should have received a total

of six criminal history points, placing him in criminal history category III. (RE 396, Def.’s Mot.

Correct Sentence, Page ID ## 679-81). The government agreed. (RE 397, Government’s Resp.

Def.’s Rule 35 Mot., Page ID ## 682-83).            The district court granted Ells’s motion and

recalculated his guidelines range as 97 to 121 months and resentenced him to 90 months of

imprisonment. (RE 414, Am. Judgment, Page ID # 946; RE 431, 11/19/15 Sentencing Tr., Page

ID ## 1025, 1033).

       In this timely appeal, Ells contends that he is entitled to a mitigating-role reduction under

USSG § 3B1.2. (Appellant Br. 9). We typically review the denial of a mitigating-role reduction

for clear error. United States v. Randolph, 794 F.3d 602, 616 (6th Cir. 2015). But because Ells

failed to request a mitigating role reduction, we review for plain error. See United States v.

Ephedrine, and Phenylpropanolamine, U.S. FOOD & DRUG ADMIN. (last updated Sept. 13,
2016), https://www.fda.gov/Drugs/DrugSafety/InformationbyDrugClass/ucm072423.htm.
2
   “Ice” refers to concentrated methamphetamine chunks that the user smokes.
Methamphetamine, DRUG ENF’T ADMIN. (July 2013), https://www.deadiversion.usdoj.gov/drug_
chem_info/meth.pdf.
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No. 15-6155, United States v. Ells

Miller, 562 F. App’x 272, 305 (6th Cir. 2014); United States v. Ellerbee, 73 F.3d 105, 108 (6th

Cir. 1996).

       USSG § 3B1.2 “provides a range of adjustments for a defendant who plays a part in

committing the offense that makes him substantially less culpable than the average participant.”

USSG § 3B1.2, comment. (n.3(A)) (2014). Section 3B1.2 authorizes a four-level reduction for a

minimal participant, a two-level reduction for a minor participant, and a three-level reduction for

a defendant whose role falls between minimal and minor.

       Ells argues that he is entitled to a mitigating-role reduction in light of an amendment to

USSG § 3B1.2’s commentary, which became effective on November 1, 2015, between his two

sentencing hearings.   Amendment 794 left the text of § 3B1.2 unchanged but revised the

commentary to clarify that courts should compare the defendant’s culpability to the defendant’s

co-participants’, not the typical offender of the alleged offense.3 USSG App. C, Amend. 794, at

115-16 (Suppl. 2016). As this court has held, “clarifications of the [sentencing] guidelines have

retroactive application while substantive changes do not.” United States v. Monus, 356 F.3d 714,

718 (6th Cir. 2004). In United States v. Carter, an unpublished opinion, this court held that

Amendment 794 applies retroactively because the Sentencing Commission characterized the

amendment as a clarification, the amendment changed only the commentary, and the amendment

addressed a circuit conflict regarding USSG § 3B1.2. 662 F. App’x 342, 349 (6th Cir. 2016). In

Carter, this court remanded for resentencing because the district court did not have the benefit of

the amended commentary to § 3B1.2 when it ruled on the defendant’s request for a mitigating-


3
  The amendment sought to resolve a circuit conflict. Before the amendment, the Seventh and
Ninth Circuits compared the defendant’s culpability to the defendant’s co-participants. The First
and Second Circuits compared the defendant’s culpability to co-participants’ and the typical
offender of the alleged conduct. USSG App. C, Amend. 794, at 115-16 (Suppl. 2016),
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/ APPENDIX_C Supplement.
pdf.
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No. 15-6155, United States v. Ells

role reduction. Id. Unlike the defendant in Carter, Ells did not request a mitigating-role

reduction in his presentence filings or during his two sentencing hearings.

       We find no error, much less plain error, even under the amended commentary to USSG

§ 3B1.2. Ells contends that he was less culpable than co-defendants Nathan Austin and Rickey

Poole but fails to point to evidence of their relative participation in the methamphetamine

conspiracy.   Ells argues that his role in the conspiracy was limited to cooking and using

methamphetamine; however, the record demonstrates that Ells was also a major distributor of

methamphetamine. In executing a search warrant at Poole’s house, law enforcement found

indicia of drug distribution—digital scales and plastic bags—in Ells’s locked bedroom.

(Presentence Report ¶ 7; RE 403, 9/25/15 Sentencing Tr., Page ID # 720). According to the case

agent’s testimony, Poole told law enforcement that Ells bought “ice” in Memphis and then sold it

in Tipton County. (RE 403, 9/25/15 Sentencing Tr., Page ID # 724). The case agent testified

that a confidential source purchased “ice” from Ells and went with Ells to Memphis to purchase

“ice” on thirty to forty occasions. (Id. Page ID # 723). GPS tracking records confirmed Ells’s

frequent trips to Memphis. (Id. Page ID # 727). Based on statements from Ells, Poole, and the

confidential source, the case agent concluded that Ells was responsible for distributing more than

50 grams of methamphetamine. (Id. Page ID ## 727-28). As the government notes, out of a

dozen people indicted, Ells was one of only five defendants who were charged with

manufacturing or distributing more than 50 grams of methamphetamine.              (RE 134, First

Superseding Indictment (Penalty Copy), Page ID ## 178-88).

       Ells has failed to show that he was substantially less culpable than the average participant

in the methamphetamine conspiracy.        “The defendant, as the proponent of the downward

adjustment, bears the burden of proving a mitigating role in the offense by a preponderance of

the evidence.” United States v. Salgado, 250 F.3d 438, 458 (6th Cir. 2001). A defendant may

                                               -4-
No. 15-6155, United States v. Ells

receive a mitigating-role reduction when the defendant is “substantially less culpable than the

average participant.” USSG § 3B1.2.

       Here, the indictment charged twelve defendants. (RE 134, First Superseding Indictment

(Penalty Copy)), Page ID ## 178-88). Ells argues two codefendants, Austin and Poole, were

more culpable than he was. (Appellant Br. 14). As this court has held, the existence of higher-

ranking conspirators does not entitle a defendant to a mitigating-role reduction. United States v.

Miller, 56 F.3d 719, 720 (6th Cir. 1995). Even if it is true that Ells was less culpable than two

co-participants, that does not establish Ells was “substantially less culpable than the average

participant,” of a twelve-person criminal conspiracy. USSG § 3B1.2. Because Ells cannot meet

the “substantially less culpable” requirement, the district court did not err by declining to apply

the reduction.

       For these reasons, we AFFIRM Ells’s sentence.




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