United States v. Anola Lewis

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 4, 2024
• Docket: 23-5242
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0154n.06

Case No. 23-5242

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 04, 2024 ) KELLY L. STEPHENS, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF ANOLA LEWIS, ) TENNESSEE Defendant-Appellant. ) ) OPINION

Before: SUTTON, Chief Judge; GRIFFIN and READLER, Circuit Judges.

SUTTON, Chief Judge. Anola Lewis pleaded guilty to conspiring to distribute fentanyl.

The sentencing guidelines recommended a prison term between 57 and 71 months. The district

court sentenced Lewis to 57 months. She now challenges that sentence as procedurally and

substantively unreasonable. We affirm.

I.

In 2020, law enforcement investigated a drug-distribution operation in Tennessee.

Through controlled buys, the officers obtained pills designed to look like commercially

manufactured oxycodone. In reality, the pills contained fentanyl, a lethal drug that

“unquestionably poses a severe danger to anyone who comes in contact with it.” Zakora v.

Chrisman, 44 F.4th 452, 470 (6th Cir. 2022). Further investigation implicated more than a dozen

individuals in the operation, including Lewis. No. 23-5242, United States v. Lewis

Intercepted text messages and phone calls revealed that Lewis negotiated, “arrang[ed,] and

consummate[d] fentanyl pill transactions” with Lee Clements, a known member of the distribution

ring. R.478 at 3. In the communications, Lewis would arrange drug quantity, type, price, and

meeting location. An agent also tailed Lewis as she completed some of the negotiated transactions.

Officers arrested Lewis, and she pleaded guilty to conspiring to distribute 391.8 grams of

fentanyl. 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846. The guidelines recommended a prison term

between 57 and 71 months. Lewis did not object to the presentence report, including its

recommended guidelines range, and requested a downward variance. The court sentenced her to

57 months.

II.

Lewis challenges the procedural and substantive reasonableness of her sentence. Because

Lewis failed to object below, even after being given the chance to do so, we review her procedural

challenge for plain error. See United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc).

We review her substantive challenge for abuse of discretion. See Gall v. United States, 552 U.S.

38, 51 (2007).

Procedural reasonableness. The procedural imperatives of a fair sentence are well

established. They require district courts to calculate the guidelines range correctly, treat the

guidelines as advisory, make correct factual determinations, and consider the § 3553(a) sentencing

factors. See United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018). The district court

followed that process in imposing this bottom-of-the-range sentence. No error, much less a plain

error, occurred.

Lewis challenges this conclusion in a few ways. She first claims that the district court erred

in basing Lewis’s offense level on the weight of the fentanyl-laced pills, as opposed to the weight

2 No. 23-5242, United States v. Lewis

of pure fentanyl. But the law is otherwise. Courts calculate offense levels for fentanyl possession

and distribution based on the weight of the “mixture or substance containing a detectable amount”

of fentanyl. 21 U.S.C. § 841(b)(1)(A)(vi); see United States v. Harris, 774 F. App’x 937, 941 (6th

Cir. 2019). The guidelines echo this view. “Unless otherwise specified,” they say, “the weight of

a controlled substance . . . refers to the entire weight of any mixture or substance containing a

detectable amount of the controlled substance.” U.S.S.G. § 2D1.1(c) cmt. n.A; see also Chapman

v. United States, 500 U.S. 453, 465 (1991) (concluding that Congress had a rational basis to

“assign[] more severe penalties to the distribution of larger quantities of drugs” as measured by

“street weight” as opposed to “the net weight of the active component”). That is just what the

district court did. It makes no difference that Lewis disagrees with this metric. A court does not

commit plain error by applying the law. See United States v. Brooks, 628 F.3d 791, 800 (6th Cir.

2011) (rejecting the argument that a district court must disregard the guidelines if it disagrees with

them).

Lewis next argues that the government failed to prove by a preponderance of the evidence

that she was responsible for 391.8 grams of fentanyl mixture. But “[t]he preponderance of the

evidence standard applies [only] to contested facts in sentencing proceedings,” not “undisputed

portion[s] of the presentence report.” United States v. Small, 988 F.3d 241, 257 (6th Cir. 2021)

(first quoting United States v. Silverman, 889 F.2d 1531, 1535 (6th Cir. 1989); then quoting Fed.

R. Crim. P. 32(i)(3)(A)). Because Lewis accepted the presentence report, the government did not

have to offer any more facts to prove the amount of the drugs for which she was responsible. See

Small, 988 F.3d at 257.

Lewis next argues that the court erred by failing to reduce Lewis’s offense level because

she played a “minimal” or at most a “minor” role in the criminal scheme. United States v.

3 No. 23-5242, United States v. Lewis

Guerrero, 76 F.4th 519, 533 (6th Cir. 2023) (quoting U.S.S.G. § 3B1.2). These proposed

reductions apply when a defendant proves that she is “‘substantially less culpable than the average

participant’ in the crime.” Id. (quotation omitted). On plain error review, we will reverse a court’s

decision only if it was “derelict” and committed to an “obvious” error. Vonner, 516 F.3d at 388

(quotation omitted).

We see no error, obvious or otherwise, in the court’s finding that Lewis was not a “minor”

participant in the criminal scheme. The record establishes that Lewis arranged several fentanyl

exchanges with a known member of the distribution ring. That gave her an important, not a minor,

role in “carrying out the [criminal] plan.” United States v. Latouf, 132 F.3d 320, 332 (6th Cir.

1997). She also failed to establish the role of the “average participant” and thus could not show

how she played a comparatively minor role. United States v. Miller, 56 F.3d 719, 720 (6th Cir.

1995); see United States v. Wilson, 802 F. App’x 976, 981 (6th Cir. 2020). The court did not err

and certainly was not “derelict” in forgoing a role reduction. Vonner, 516 F.3d at 388; see

Guerrero, 76 F.4th at 533.

B.

Substantive reasonableness. Lewis argues that her sentence is “too long.” Rayyan, 885

F.3d at 442. But she falls far short of rebutting the presumption that this within-guidelines sentence

was substantively reasonable. See Gall, 552 U.S. at 51. Given that she was responsible for a large

amount of fentanyl, an “unquestionably” dangerous drug that “poses a severe danger to anyone

who comes in contact with it,” we cannot fault the district court’s decision to sentence her within

the guidelines range. Zakora, 44 F.4th at 470.

4 No. 23-5242, United States v. Lewis

III.

Lewis separately raises a claim of ineffective assistance of counsel. But this claim jumps

the gun. We generally require defendants to wait until collateral review to raise such claims. See

United States v. Bradley, 400 F.3d 459, 461–62 (6th Cir. 2005); 28 U.S.C. § 2255. On this record,

which does not contain any information about Lewis’s lawyer’s strategy at sentencing, we think it

prudent to stand by this traditional approach.

We affirm.