NOT RECOMMENDED FOR PUBLICATION File Name: 23a0081n.06
No. 21-1663
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Feb 09, 2023 ) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE EASTERN ) ADAM DEAN BROWN, DISTRICT OF MICHIGAN ) Defendant-Appellant. ) OPINION ) )
Before: GILMAN, McKEAGUE, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
A jury convicted defendant Adam Brown on three drug-trafficking charges. His prior
felony drug offense and the jury’s findings that the fentanyl he distributed resulted in serious bodily
injury and death mandated an enhanced sentence of life imprisonment under 21 U.S.C.
§ 841(b)(1)(C). On appeal, he raises several challenges to his convictions and sentence. Because
intervening caselaw mandates reversal with respect to the enhanced sentence that he received for
his conviction for conspiracy to distribute and possess with intent to distribute controlled
substances in violation of 21 U.S.C. § 846, with a death-resulting enhancement, we vacate his
sentence with respect to count one. The remainder of his appeal is without merit. Accordingly,
we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion. No. 21-1663, United States v. Brown
I.
Brown’s appeal involves several aspects of 21 U.S.C. § 841. Subsection (a) makes it
unlawful for an individual to, among other things, distribute a controlled substance, and subsection
(b) sets forth mandatory minimum and maximum sentences that depend upon the weight and type
of controlled substance, the individual’s criminal history, and whether the distributed substance
resulted in serious bodily injury or death. Section 846 criminalizes attempt and conspiracy to
commit the distribution of a controlled substance, and subjects those convicted “to the same
penalties as those prescribed for the offense.”
Section 841(b)(1)(C) is the applicable penalty provision for Brown, which applies to the
distribution of “a controlled substance in schedule I or II” (including fentanyl). It has a few tiers.
The lowest is a twenty-year maximum sentence, which increases to thirty if a defendant violates
§ 841(a) “after a prior conviction for a felony drug offense has become final.” But if “death or
serious bodily injury results from the use of such [controlled] substance,” § 841(b)(1)(C) mandates
a twenty-year minimum sentence. And as with Brown’s case, that mandatory minimum increases
to life imprisonment with the presence of a prior felony drug conviction.
Here, a grand jury indicted Brown and two others on various drug crimes for their role in
distributing fentanyl that resulted in the overdoses of two individuals struggling with opioid
addiction, Alexander Brenner and Jeffrey Keon. Relevant to this appeal are three charges:
conspiracy to distribute and possess with intent to distribute controlled substances, in violation of
21 U.S.C. § 846, with a death-resulting enhancement (count one); distribution of a controlled
substance, in violation of 21 U.S.C. § 841, with a death-resulting enhancement (count five); and
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distribution of a controlled substance, in violation of 21 U.S.C. § 841, with a serious-bodily injury
enhancement (count six).1
A jury convicted Brown on all three counts and found him responsible for Brenner’s death
and Keon’s serious bodily injury. With those findings, and Brown’s prior felony drug convictions,
the district court imposed mandatory terms of life imprisonment on counts one and six under
§ 841(b)(1)(C), and three hundred sixty months on the remaining counts, all concurrent with each
other.
With this background, we turn to defendant’s numerous claims on appeal.
II.
Brown raises two issues concerning his conviction for distributing a controlled substance
in violation of 21 U.S.C. § 841, that resulted in Jeffrey Keon’s serious bodily injury (count six):
(1) the sufficiency of the evidence supporting the conviction; and (2) whether the district court’s
evidentiary rulings concerning the admissibility of certain text messages post-Keon’s death
infringed upon Brown’s right to present a defense.
A.
The crime of distributing a controlled substance resulting in serious bodily injury under
§ 841 requires a jury to find both (1) knowing or intentional distribution of a controlled substance,
and (2) serious bodily injury caused by the use of that drug. Burrage v. United States, 571 U.S.
204, 210 (2014). The indictment here charged Brown with distributing a mixture and substance
that contained a detectable amount of fentanyl. Importantly, the government was not required to
establish Brown knew that what he distributed had fentanyl; rather, all that was necessary is proof
1 The grand jury also charged Brown with two counts of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841, to which he pleaded guilty before trial. Brown does not raise any issues regarding these convictions in this appeal. -3- No. 21-1663, United States v. Brown
that he distributed a controlled substance. See United States v. Mahaffey, 983 F.3d 238, 242–43
(6th Cir. 2020). The government must also establish causation—that Keon’s serious bodily injury
“result[ed] from” Brown’s conduct. § 841(b)(1)(C). Under Burrage, “where use of the drug
distributed by the defendant is not an independently sufficient cause of the victim’s death or serious
bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C.
§ 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” 571 U.S. at 218–19.
We must uphold a jury’s conviction if, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We can
sustain a conviction based on circumstantial evidence alone, and the evidence need not disprove
every hypothesis except that of guilt. United States v. Lindo, 18 F.3d 353, 357 (6th Cir. 1994). A
sufficiency claim does not allow us to “weigh the evidence presented, consider the credibility of
witnesses, or substitute our judgment for that of the jury.” United States v. Jackson, 470 F.3d 299,
309 (6th Cir. 2006) (citation omitted). Rather, we “draw all available inferences and resolve all
issues of credibility in favor of the jury’s verdict.” Id. (citation omitted).
This standard is a “high bar” to clear. United States v. Persaud, 866 F.3d 371, 379–80
(6th Cir. 2017). For Brown’s appeal, it is even more so. At trial, he moved for a judgment of
acquittal under Federal Rule of Criminal Procedure 29, arguing that Keon sourced drugs from
various dealers and that no eyewitness observed Brown give Keon a controlled substance. But his
briefing here advances a different argument, contending that the evidence showed Keon overdosed
not from fentanyl, but from benzodiazepine. Given the specificity of his Rule 29 motion, Brown
-4- No. 21-1663, United States v. Brown
forfeited the new ground for appeal he now advances.2 See United States v. LaVictor, 848 F.3d
428, 457 (6th Cir. 2017). So our review is even “more lenient.” United States v. Woods, 14 F.4th
544, 555 (6th Cir. 2021). We apply the “manifest miscarriage of justice” standard, under which
Brown can succeed only if the record is “devoid of evidence pointing to guilt.” Id. (citations
omitted).
Brown cannot make that showing. The record reveals that Keon was a regular customer of
Brown’s. The two had recently texted about Brown’s access to “fire white”—which the jury heard
means fentanyl (to which Brown was previously connected)—and eventually consummated a drug
deal. Cell-phone records demonstrate that the two talked briefly on January 24, 2018, and met up
shortly thereafter. The jury heard from Keon’s mother describing Keon’s awareness of the drug’s
potency—she witnessed him return home on that day, enter his bedroom, come out to say,
“Whatever happens, don’t call 911,” and then collapse. It also learned that three doses of the
opioid-overdose-countering Narcan were needed to revive Keon and that, while Keon was
recovering at the hospital, his mother found a baggie with drugs wrapped in tinfoil. The jury was
presented with heartbreaking evidence that Keon’s mother told Keon where she had hidden those
drugs after he persistently asked where they were, and that he died from a fentanyl overdose the
following day. Finally, the jury heard from a medical expert that fentanyl toxicity caused the first
overdose and Keon’s death. In sum, the record here is nowhere close to being devoid of evidence
pointing to guilt.
2 Brown disagrees. He contends that he “made a general Rule 29 motion at the close of the Government’s case,” which he renewed at the end of his proofs, preserving all grounds for appeal. But that is not what the record reflects. Rather, Brown’s attorney asked the district court to “hold” presenting his Rule 29 motion pending his proofs, and then told the district court at the end of his proofs that he was renewing it and would be filing a written motion shortly. It was in that written motion that Brown made a specific, and not general, motion for a judgment of acquittal. -5- No. 21-1663, United States v. Brown
Brown resists this conclusion by noting that the hospital’s drug screen was positive for
benzodiazepine and negative for fentanyl, and thus suggests that the jury convicted Brown of
distributing benzodiazepine (which was not charged in the indictment). But the jury was presented
with an explanation for both—a benzodiazepine overdose differs from one induced by fentanyl
(namely, an overdose of benzodiazepine cannot be reversed by Narcan), and the hospital’s
urinalysis test was not capable of detecting fentanyl. Indeed, it is not disputed that Keon died of a
fentanyl overdose the very next day, and the record evidence suggests the source of those drugs
(the bag hidden by his mother) was the same drugs he purchased from Brown that led to the first
overdose.
For these reasons, defendant’s sufficiency-of-the-evidence challenge is without merit.
B.
Brown’s other challenge to his serious-bodily-injuring-distribution-of-fentanyl conviction
for Keon is an evidentiary one packaged in constitutional terms. After Keon’s death (but before
Brown learned of it), Brown reached out to Keon, texting: “Damn, Bro. What happened to
you . . . ?” Law enforcement officials investigating Keon’s death decided to impersonate Keon
and exchanged text messages with Brown. The gist of the exchange was Brown proclaiming that
what he had delivered to Keon was not what had caused the overdose. The government objected
to the introduction of these text messages on hearsay grounds. Brown responded that they were
admissible under the rule of completeness or under Rule 803 as evidence of Brown’s state of mind.
The district court sustained the government’s objection as inadmissible hearsay. Brown contends
on appeal that the district court erroneously kept out of evidence these text messages, resulting in
the denial of his right to “a meaningful opportunity to present a complete defense.” Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (citation omitted). We do not agree.
-6- No. 21-1663, United States v. Brown
“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a
complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane,
476 U.S. at 690). However, “the Supreme Court has made it perfectly clear that the right to present
a ‘complete’ defense is not an unlimited right to ride roughshod over reasonable evidentiary
restrictions.” Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc). “A defendant ‘does
not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise
inadmissible under standard rules of evidence.’” Id. (quoting Taylor v. Illinois, 484 U.S. 400, 410
(1988)).
“[E]rroneous evidentiary rulings rarely constitute a violation of a defendant’s right to
present a defense.” United States v. Hardy, 586 F.3d 1040, 1044 (6th Cir. 2014). The exclusion
of defense evidence violates a defendant’s constitutional right to present a defense only where it
is “arbitrary” or “disproportionate”; that is, where “important defense evidence” is excluded
without serving “any legitimate interests” or in a manner that is “disproportionate to the ends that
[the rationale for exclusion is] asserted to promote.” Holmes, 547 U.S. at 324–26 (internal
quotation marks omitted). To prevail, a defendant must show that an arbitrary or disproportionate
exclusion of evidence, “evaluated in the context of the entire record[,] creates a reasonable doubt
that did not otherwise exist.” United States v. Blackwell, 459 F.3d 739, 753 (6th Cir. 2006)
(brackets and citation omitted).
Generally, “[w]here a defendant attacks an evidentiary ruling as violating the Sixth
Amendment, review of the legal aspects of the constitutional violation is de novo.” United States
v. Reichert, 747 F.3d 445, 453 (6th Cir. 2014). But Brown has a forfeiture problem. Below, he
neither challenged the district court’s evidentiary rulings on a constitutional basis nor advanced
the arguments supporting this claim—that the evidence was both exculpatory and represented
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“a present sense impression of the events surrounding Keon’s overdose.” We must therefore view
Brown’s claim through the more demanding plain-error lens. See United States v. Cromer,
389 F.3d 662, 672 (6th Cir. 2004) (“Plain error review applies even if the forfeited assignment of
error is a constitutional error.”). Plain error means: “(1) an error occurred; (2) the error was
obvious or clear; (3) the error affected [the defendant’s] 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) (citation omitted).
Brown cannot satisfy these compounding, demanding standards. The district court
correctly kept the messages out as inadmissible hearsay, and Brown makes no argument to the
contrary here. He argues, rather, that the text messages he sent corroborate his story—that “Brown
did not give Keon anything since ‘last week,’” and “that the drugs Brown gave Keon were nothing
different than he normally provided – i.e., heroin.” Stated differently, Brown asks that we should
take his text messages for the truth of the matter asserted because they support his claim of
innocence.
“The principle that undergirds [Brown]’s right to present exculpatory evidence is also the
source of essential limitations on the right.” Taylor, 484 U.S. at 410. That includes the reasonable
limitations set forth in the rules of evidence prohibiting the introduction of hearsay. No case
permits a defendant to introduce anything he pleases, even if exculpatory. Rather, the caselaw has
uniformly rejected such a broad view. See Rockwell, 341 F.3d at 512; see also United States v.
Kerley, 784 F.3d 327, 342 (6th Cir. 2015) (finding no violation of a right to present a defense when
the evidence was inadmissible hearsay). And regardless, Brown was still able to tell the jury his
version of the facts, including that he did not deliver fentanyl to Keon.
Brown has not demonstrated any error, let alone plain error.
-8- No. 21-1663, United States v. Brown
III.
Brown raises three issues concerning his two convictions stemming from the overdose
death of Alexander Brenner—conspiracy to distribute and possess with intent to distribute
controlled substances, in violation of 21 U.S.C. § 846, with a death-resulting enhancement (count
one), and distribution of a controlled substance, in violation of 21 U.S.C. § 841, without a death-
resulting enhancement (count five). He challenges (1) the district court’s admission into evidence
of a co-conspirator’s plea agreement, (2) its jury instruction for count one, and (3) its interpretation
of the jury’s verdict form for count five.
Count one of the first superseding indictment charged Brown, Terence Robinson, and one
other for conspiracy to distribute and possess with intent to distribute controlled substances, in
violation of 21 U.S.C. § 846, with a death-resulting enhancement. This charge arose from
Alexander Brenner arranging with Robinson for the purchase of what they thought was heroin
from Brown, as the pair had done previously. Brenner fatally overdosed on the substance, which
turned out to be fentanyl.
Robinson pleaded guilty to this charge pursuant to a plea agreement and agreed to testify
at Brown’s trial. During Robinson’s testimony, the district court received into evidence (over
Brown’s objection) copies of Robinson’s plea and cooperation agreements. Specifically, the
district court cited our decision in United States v. Townsend, which provides that the “introduction
of the entire plea agreement [does not] improperly bolster [a witness]’s credibility”; rather, doing
so “permits the jury to consider fully the possible conflicting motivations underlying the witness’
testimony and, thus, enables the jury to more accurately assess the witness’ credibility.” 796 F.2d
158, 163 (6th Cir. 1986).
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We review a district court’s decision to admit evidence over a defendant’s objection under
the abuse-of-discretion standard. See United States v. Mack, 808 F.3d 1074, 1084 (6th Cir. 2015).
“When reviewing for abuse of discretion, we view ‘the evidence in the light most favorable to its
proponent, giving the evidence its maximum reasonable probative force and its minimum
reasonable prejudicial value.’” United States v. Deitz, 577 F.3d 672, 688 (6th Cir. 2009) (citation
omitted). The question is not whether the evidence is prejudicial, but whether it is unfairly so.
Unfair prejudice “does not mean the damage to the defendant’s case that results from the legitimate
probative force of the evidence; rather, it refers to evidence which tends to suggest decision on an
improper basis.” United States v. Mendez–Ortiz, 810 F.2d 76, 79 (6th Cir. 1986). “We reverse
only where the district court’s erroneous admission of evidence affects a substantial right of the
party.” United States v. White, 492 F.3d 380, 398 (6th Cir. 2007) (citing Fed. R. Evid. 103(a)).
In Brown’s view, the district court abused its discretion in admitting evidence of
Robinson’s plea agreement because the agreement was proof positive of a substantive element of
the crime that both Robinson and Brown were charged—a conspiracy to deliver drugs. But our
caselaw plainly permits the government to introduce such evidence to help the jury assess that
witness’s credibility. See Townsend, 796 F.2d at 163; United States v. Tocco, 200 F.3d 401, 416
(6th Cir. 2000). And it may do so prophylactically in order “to blunt defense efforts at
impeachment and dispel the suggestion that the government or its witness has something to hide.”
United Sates v. Christian, 786 F.2d 203, 214 (6th Cir. 1986); see also Tocco, 200 F.3d at 416–17
(“The prosecutor may refer to such agreement in appropriate circumstances to deflect defendant’s
use of a plea agreement to attack the witness’ credibility.”). It was for this purpose that the
government sought to introduce Robinson’s plea agreement.
-10- No. 21-1663, United States v. Brown
And our precedent tempers Brown’s prejudice concerns. True, we have said, it can be
prejudicial for a coconspirator who pleaded guilty to testify against another at trial, but “much of
this potential for prejudice is negated when the pleading codefendant testifies regarding the
specific facts underlying the crimes in issue.” United States v. Thornton, 609 F.3d 373, 378
(6th Cir. 2010) (ellipsis and citation omitted); see also United States v. Gray, 87 F.3d 1315, at *3
(6th Cir. June 3, 1996) (table op); United States v. Walker, 871 F.2d 1298, 1303–04 (6th Cir. 1989).
That is what happened here, as Robinson extensively testified about his role in helping Brenner
secure the drugs from Brown. Moreover, the jury heard about Robinson’s “motivation for
testifying” and his “potential sentence, so [Brown] cannot legitimately claim this information
prejudiced him.” Thornton, 609 F.3d at 378.
Two more points cut against Brown. First, there is no evidence that the government used
the plea agreement for any improper purpose, such as in its closing argument. Id.; United States
v. Carson, 560 F.3d 566, 575 (6th Cir. 2009). Second, the district court here gave a jury instruction
cautioning that “[t]he fact that Terence Robinson has pled guilty to a crime is not evidence that
[Brown] is guilty, and [you] cannot consider this against [Brown] in anyway.” These points further
weaken Brown’s “I was prejudiced” position. See Thornton, 609 F.3d at 378; Walker, 871 F.2d at
1304.
For these reasons, the district court did not abuse its discretion when it admitted into
evidence Robinson’s plea and cooperation agreements.
C.
Brown next contends that the district court erroneously instructed the jury regarding the
death-resulting enhancement for count one—the conspiracy to distribute and possess with intent
to distribute controlled substances, in violation of 21 U.S.C. § 846. It gave a Pinkerton instruction
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on this issue, which “permits conviction of a conspirator for the substantive offenses of other
conspirators committed during and in furtherance of the conspiracy.” United States v. Martin, 920
F.2d 345, 348 (6th Cir. 1990). The instruction provided that the jury need consider only “whether
Alexander Brenner’s death resulted from the distribution of the heroin or fentanyl by a member of
the conspiracy.” Brown contends this misstated the law by failing to instruct the jury that it must
find that Brown was in the chain of distribution that caused Brenner’s death. Having not advanced
that objection below, we review under the plain-error standard. See United States v. Stewart, 729
F.3d 517, 530 (6th Cir. 2013). This means that we must find that “taken as a whole, the jury
instructions were so clearly erroneous as to likely produce a grave miscarriage of justice.” United
States v. Newsom, 452 F.3d 593, 605 (6th Cir. 2006) (citation omitted).
As the government correctly concedes, Brown has satisfied this standard. We recently
reiterated (albeit after Brown’s trial) that “[w]hen a defendant’s underlying crime relies on a
conspiracy theory of liability, then the district court cannot impose the enhanced sentence unless
the jury finds that the defendant was part of the distribution chain that led to the victim’s overdose.”
United States v. Sadler, 24 F.4th 515, 560 (6th Cir. 2022); see also United States v. Williams,
998 F.3d 716, 734 (6th Cir. 2021); United States v. Hamm, 952 F.3d 728, 747 (6th Cir. 2020);
United States v. Swiney, 203 F.3d 397, 406 (6th Cir. 2000). Failing to give such an instruction
constitutes plain error, Sadler, 24 F.4th at 561, which had a substantial effect on Brown’s rights—
here the jury found Brown guilty on count one for the distribution of the fentanyl that killed
Brenner under the Pinkerton theory’s “lower standard.” Id.
As for a remedy, Sadler provides that we must vacate Brown’s sentence for count one and
“remand for a new trial on the sole question of whether [Brown] was within the chain of
distribution as required before imposing an enhanced sentence under 21 U.S.C. § 841(b)(1)(C).”
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Id. at 562, 564. The government asserts that it will not retry Brown on the chain-of-custody issue
if we affirm his conviction for count six (which, as set forth above, we do) and thus requests that
we just remand to correct the judgment for count one. We decline to do so, and will instead leave
it to the district court to address on remand. Bound by Sadler, we therefore vacate Brown’s
sentence with respect to count one and remand for further proceedings consistent with this opinion.
D.
The last issue with respect to Brenner’s overdose death involves an interpretation of the
jury’s verdict for count five.
Under Alleyne v. United States, the Sixth Amendment requires that “[a]ny fact that, by law,
increases the penalty for a crime . . . must be submitted to the jury and found beyond a reasonable
doubt.” 570 U.S. 99, 103 (2013). This includes § 841(b)’s sentencing enhancements. Burrage,
571 U.S. at 210. And § 841(b)(1)(C) applies to convictions related to the distribution of “a
controlled substance in schedule I or II,” with fentanyl being a schedule II opioid. Unlike other
portions of § 841(b), this provision does not have a drug-weight requirement.
The jury’s verdict form found Brown guilty of distributing a controlled substance as set
forth in count five of the indictment, but that the government failed to “prove[] beyond a reasonable
doubt that Alexander Brenner would not have died but for the use of the same fentanyl distributed
by [Brown].” The jury’s findings here, combined with his prior felony drug convictions (more on
this below), meant that his statutory range increased to not more than thirty years in prison. See
§ 841(b)(1)(C).
Brown contends the jury rendered a general verdict—that it found only that he distributed
a “controlled substance” but did not find that the substance was fentanyl as required for the
§ 841(b)(1)(C) enhancement. So, he states, “[t]he jury’s verdict only supports a conviction for an
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unnamed amount of drugs, with no quantity,” and therefore the statutory enhancement cannot
apply. He thus suggests that, because the jury declined to impose the death-resulting enhancement,
it necessarily rejected a finding that fentanyl was the controlled substance supporting his
conviction. Brown having raised this issue below, our review is de novo. United States v.
Copeland, 321 F.3d 582, 601 (6th Cir. 2003).
The applicable indictment charged Brown in count five with distributing a controlled
substance, in violation of § 841(a)(1). And it sets forth that the controlled substance was fentanyl.
The jury instructions also made this expressly clear, which emphasized that fentanyl was the
charged controlled substance.
With this background, we can easily reject Brown’s challenge to the jury verdict. Criminal
trials and their resulting judgments flow from “the language of the indictment, the evidence
presented at trial, the jury instructions and the verdict forms utilized by the jury.” United States v.
Kuehne, 547 F.3d 667, 683–84 (6th Cir. 2008). More to the point, we do not view verdict forms
in isolation; rather, they come with “a user’s manual: the jury instructions. So we evaluate the
verdict form in the context of the instructions as a whole[.]” Moody v. United States, 958 F.3d
485, 491 (6th Cir. 2020); see also Slaughter v. Parker, 450 F.3d 224, 241 (6th Cir. 2006) (“We
must consider the verdict form in conjunction with the jury instructions.”). Here the indictment
and the jury instructions “ensured that the jury knew” that fentanyl was the controlled substance
charged in count five. Woods, 14 F.4th at 553. Nor does it matter that the jury made no factual
findings concerning quantities—“when specific quantities are not alleged, . . . § 841(b)(1)(C) . . .
establishes the default statutory maximum sentences and does not require as an element of the
offense a specific quantity of drugs.” United States v. Stewart, 306 F.3d 295, 310 (6th Cir. 2002).
In sum, the jury returned a specific, not general, verdict.
-14- No. 21-1663, United States v. Brown
Brown’s argument to the contrary conflates the jury’s two findings: that the government
proved beyond a reasonable doubt that Brown distributed fentanyl, but that the government failed
to prove beyond a reasonable doubt that the fentanyl was Brenner’s but-for cause of death. Just
because the jury found in the government’s favor on one, but in Brown’s favor on the other, cannot
mean that the jury “rejected fentanyl.”
For these reasons, defendant’s claim of error here is without merit.
IV.
Finally, Brown raises a few issues concerning his sentence that are not tethered to his
specific counts of conviction.
First, Brown takes issue with the content of the 21 U.S.C. § 851 notice. That section sets
forth the procedure required before a court may impose a conviction-based enhancement under
§ 841(b). It provides that “[n]o person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior convictions, unless before trial,
or before entry of a plea of guilty, the United States attorney files an information with the court
(and serves a copy of such information on the person or counsel for the person) stating in writing
the previous convictions to be relied upon.” § 851(a)(1). A district court must then—after
conviction but before pronouncement of sentence—“inquire of the person with respect to whom
the information was filed whether he affirms or denies that he has been previously convicted as
alleged in the information, and shall inform him that any challenge to a prior conviction which is
not made before sentence is imposed may not thereafter be raised to attack the sentence.” § 851(b).
Section 851(c) then sets forth what a district court must do if a person denies or otherwise claims
a conviction is invalid.
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The government filed a § 851 sentencing enhancement notice. It identified four “prior
felony drug convictions that the government [would] rely upon at sentencing”: convictions in
March 2001, January 2009, and March 2009 for “deliver/manufacture of a controlled substance,”
in violation of M.C.L. § 333.7401(a)(a)(iv), and a conviction in March 2009 for “imitation,
manufacture or distribution” of a controlled substance, in violation of M.C.L. § 333.7341(3).
In this appeal, Brown argues the notice failed to inform him of the possibility of a
mandatory life sentence. He does not draw this here-is-what-the-penalty-could-be requirement
from the text of § 851. Nor could he, for the text does not mandate one—all it requires is that the
government “stat[e] in writing the previous convictions to be relied upon.” § 851(a)(1); see also
United States v. Vanness, 85 F.3d 661, 663 (D.C. Cir. 1996) (“The statute does not burden the
government with the duty of advising defendants of sentencing consequences.”). Rather, Brown
argues we should infer the requirement from the statute’s “purpose”: it “was designed to satisfy
the requirements of due process and provide the defendant with reasonable notice and an
opportunity to be heard regarding the possibility of an enhanced sentence for recidivism.” United
States v. Pritchett, 496 F.3d 537, 548 (6th Cir. 2007) (citation omitted). Brown having failed to
object to the content of the notice below, we review for plain error. See United States v. Gonzalez,
512 F.3d 285, 288 (6th Cir. 2008).
There was no plain error here. Fatal to Brown’s challenge is that no binding caselaw
required the government to set forth such information in the § 851 notice. See United States v. Al-
Maliki, 787 F.3d 784, 794 (6th Cir. 2015). Given that the unambiguous language of the statute
imposes no such requirement, it logically follows that there is no caselaw requiring such a
command through purposivism. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Equally
fatal for Brown is a lack of effect on his substantial rights—he twice acknowledged the possibility
-16- No. 21-1663, United States v. Brown
of mandatory life sentences, he was present in court when the government set forth his exposure
to mandatory life sentences if the government filed § 851 enhancements when the parties were
engaged in plea bargaining, and his attorney acknowledged that possibility when responding to the
government’s § 851 notice. Cf. United States v. King, 127 F.3d 483, 489 (6th Cir. 1997) (“[I]t is
undisputed that prior to trial the prosecuting attorney and defense counsel discussed the potential
enhancement, including the offense upon which it would be based.”).
The next issue is a well-worn Sixth Amendment challenge. As set forth, the Supreme Court
has interpreted the Sixth Amendment to require that a jury decide any fact that increases minimum
and maximum sentences, including those set forth in § 841(b)’s sentencing enhancements.
Burrage, 571 U.S. at 210 (citing Alleyne, 570 U.S. at 114–16; Apprendi v. New Jersey, 530 U.S.
466, 490 (2000)). In Brown’s view, his jury was required to find two facts supporting his
§ 841(b)(1)(C) enhancement: (1) that he had a “prior conviction for a felony drug offense [that]
has become final”; and (2) the type and quantity of the drug he distributed that resulted in death
or serious bodily injury. As to the latter, the jury made the requisite finding regarding his
distribution of fentanyl resulting in Keon’s serious bodily injury and was not required to make any
quantity findings for that distribution. See Stewart, 306 F.3d at 310. So, although he couches his
argument as this being a mandatory “dual finding,” his objection here really just goes to the
former—that the jury made no factual findings concerning his prior felony drug convictions
supporting the enhancement. Brown raised this argument below, so we review de novo. United
States v. Moore, 643 F.3d 451, 454 (6th Cir. 2011).
Binding precedent forecloses Brown’s claim. Almendarez-Torres v. United States
expressly carved out an exception to this general jury-fact-finding rule for facts of prior
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convictions. See 523 U.S. 224, 226–29 (1998). Although Almendarez-Torres came before
Apprendi and Alleyne, our caselaw makes clear that it remains good law. See, e.g., Moody, 958
F.3d at 491; United States v. Young, 847 F.3d 328, 369 (6th Cir. 2017); United States v. Nagy,
760 F.3d 485, 488 (6th Cir. 2014). And we have said so in the face of a challenge to an
enhancement under § 851 for a prior felony drug offense. Young, 847 F.3d at 369.
Recent caselaw suggests that this exception might not apply to the First Step Act of 2018’s
revisions to § 851. See United States v. Fields, 53 F.4th 1027, 1036–38 (6th Cir. 2022). That
matter addressed a § 841(b)(1)(A)(viii) enhancement, wherein the defendant received a twenty-
five year mandatory minimum sentence for possessing 500 grams or more of methamphetamine
with intent to distribute given his two prior convictions for “serious drug felon[ies].” Id. at 1031.
In dicta, we commented that because a “serious drug felony” under the First Step Act is “(1) a
‘serious drug offense’ under 18 U.S.C. § 924(e)(2)(A), for which the defendant (2) served over a
year in prison and (3) was released within fifteen years of the commencement of the instant
offense,” and because Almendarez-Torres is a “narrow exception to the general rule,” that it makes
“intuitive” sense “that the Sixth Amendment would require the jury to decide whether, for each
prior conviction, [a defendant] was incarcerated for over a year and released within fifteen years
of the instant offense.” Id. at 1031, 1036–37. But we ultimately declined to decide the issue
because, in that matter, “those facts were actually submitted to the jury.” Id. at 1038.
Brown argues that “Fields requires this Court to remand for resentencing without the
21 U.S.C. § 851 enhancement.” Not so. For one, Fields did not address the issue, and we are not
bound by its dicta. And for another, and more importantly, Fields dealt with a different
enhancement—one falling under § 841(b)(1)(A) for a “serious drug felony.” Here, Brown
received an enhancement under § 841(b)(1)(C)’s “felony drug offense.” It is a different definition,
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compare 21 U.S.C. § 802(44), with (57), and one that used to be applicable to §§ (b)(1)(A) and
(B) until the First Step Act modified those subsections, see Fields, 53 F.4th at 1031; see also First
Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5220–21.
For these reasons, Brown’s claim of error on this issue is meritless.
Brown also takes issue with the district court’s conclusion that his various Michigan
convictions for cocaine distribution qualified as a “prior conviction for a felony drug offense” for
purposes of § 841(b)(1)(C)’s enhancement.
A “felony drug offense” is “an offense that is punishable by imprisonment for more than
one year under any law of the United States or of a State or foreign country that prohibits or
restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or
stimulant substances.” § 802(44) (emphasis added). Because of the “relating to” language, we
have commented that this definition is expansive, and necessarily includes more conduct than the
Guideline’s narrower definition of “controlled substance offense.” United States v. Spikes,
158 F.3d 913, 932 (6th Cir. 1998) (discussing U.S.S.G. § 4B1.2(2)).
Our focus is on Brown’s three prior convictions for cocaine distribution under
M.C.L. § 333.7401(a)(2)(a)(iv). Before the district court, Brown acknowledged that our existing,
albeit unpublished, caselaw provided that we do not employ the categorical approach when
determining whether a prior conviction constitutes a “felony drug offense” for § 841(b) purposes.
See United States v. Soto, 8 F. App’x 535, 541 (6th Cir. 2001). But he argued that if we were to
do so (like other circuits), his convictions for distributing cocaine under Michigan law swept
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“broader than the federal definition.”3 Although not the model of clarity, his overbreadth argument
below was that Michigan’s substantive definition of cocaine as set forth in its statutory schedules
is broader than the federal schedules. Compare 21 U.S.C. § 802(17), with M.C.L.
§ 333.7214(a)(iv).
Brown abandoned that specific, cocaine-based overbreadth argument and instead presses a
newer, broader one on appeal. He asserts that Michigan’s drug-distribution statute criminalizes a
broader swath of conduct than the federal definition of “conduct relating to narcotic drugs” because
Michigan law defines “controlled substance” as not just “a drug,” but also a “substance, or
immediate precursor.” M.C.L. § 333.7104(3). So plain-error review applies again.
That demanding standard mandates Brown’s loss on this issue. There is no binding circuit
precedent holding that Michigan’s controlled-substances statute prohibits more conduct than
§ 841’s definition of a “felony drug offense” on the basis that M.C.L. § 333.7401(2)(a)(iv) also
criminalizes substances and immediate precursors. See Al-Maliki, 787 F.3d at 794. Indeed, our
caselaw seemingly points in the opposite direction, for we have said that M.C.L. § 333.7401 falls
within the even narrower definition of the Guidelines. See, e.g., United States v. Gardner, 32 F.4th
504, 529 (2022). And our caselaw notes that, under Michigan law, “the specific substance a
3 We are apparently on one side of a lopsided circuit split on the issue of whether courts must employ the “categorical approach” as we do for other statutes, like the Armed Career Criminal Act, when evaluating § 841(b) predicate offenses. See generally Mathis v. United States, 579 U.S. 500 (2016). We said in Soto, without any analysis or citation, that “this court does not employ a categorical approach to determining whether a prior conviction constitutes a ‘felony drug offense’ for purposes of section 841(b)(1).” 8 F. App’x at 541. We have relied on this language to reject similar arguments to those advanced by Brown here, see, e.g., Meeks v. Kizziah, 2020 WL 9396243, at *2 (6th Cir. Dec. 15, 2020) (order), as have the district courts within our circuit, see, e.g., United States v. Chappell, 2020 WL 5064656, at *3–4 (E.D. Mich. Aug. 27, 2020). But it appears that we are the sole outlier. The First, Second, Third, Seventh, Eighth, and Ninth Circuits have all concluded that courts must use the categorical approach to determine whether a particular prior felony drug offense qualifies for purposes of § 841(b)’s statutory enhancement. See United States v. Thompson, 961 F.3d 545, 551 (2d Cir. 2020) (collecting cases). -20- No. 21-1663, United States v. Brown
defendant is charged with possessing or delivering is one of the elements of a § 333.7401
violation.” United States v. Pittman, 736 F. App’x 551, 555 (6th Cir. 2018) (collecting cases).
Accordingly, “[b]ecause Michigan courts treat the specific substance as an element of the offense,
§ 333.7401(2)(a)(iv) is divisible,” id., and therefore it apparently matters not whether § 333.7401
also covers substances and immediate precursors given Brown’s cocaine-distribution convictions.
See also United States v. House, 872 F.3d 748, 753 (6th Cir. 2017) (“Michigan’s controlled-
substance statute is divisible.”).
Finally, Brown asserted initially that the district court erroneously calculated his
Guidelines range by concluding that his prior drug-distribution convictions rendered him a career
offender under U.S.S.G. § 4B1.1. The government responded that there is no reason to address
this challenge because Brown’s life sentence was statutorily required, and thus the Guidelines
played no role in his sentence and would be a factor only if we vacated both counts that mandated
the § 841(b) life-in-prison enhancement. Brown then waived this issue in his reply, conceding
that, “if the career offender adjustment becomes relevant upon resentencing, that it should be
decided by the district court in the first instance.” That waiver aside, his statutory enhancement
stands with respect to count six, so this issue is without merit.
V.
For these reasons, we affirm in part, vacate in part, and remand for further proceedings
consistent with this opinion.
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