United States v. Davanti Heard-White

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 11, 2024
• Docket: 23-1146
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0112n.06

No. 23-1146

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 11, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF MICHIGAN DAVANTI DIAMON HEARD-WHITE, ) ) OPINION Defendant-Appellant. )

Before: SUTTON, Chief Judge; SUHRHEINRICH and MURPHY, Circuit Judges.

SUHRHEINRICH, Circuit Judge. Wiretaps proved very useful in the prosecution of

Defendant Davanti Diamon Heard-White. Through intercepted calls, law enforcement learned

that Defendant was supplying codefendant John Humphrey, a drug trafficker in the Lansing,

Michigan area, with lots of methamphetamine. Defendant pleaded guilty to conspiracy to

distribute methamphetamine and to being a felon in possession of a firearm. On appeal he claims

that his sentence is procedurally and substantively unreasonable and that his 18 U.S.C. § 922(g)(1)

conviction violates the Second Amendment. We affirm.

I.

In April 2021, federal, state, and local law enforcement began investigating Humphrey’s

drug trafficking organization. Through various forms of surveillance, including court-authorized

wiretaps, they learned that Defendant was Humphrey’s methamphetamine supplier. On July 1,

2021, Humphrey asked Defendant for four pounds of methamphetamine. Defendant told No. 23-1146, United States v. Heard-White

Humphrey that he stored his drugs at the house of his brother Demetrius Heard in Lansing because

that was “the only place I’m comfortable [with].” Defendant also told Humphrey that he was

going to have “bro” give the methamphetamine to Lake. (R.473-6, PID 4084. They eventually

agreed that Defendant would bring Humphrey four pounds of methamphetamine. Defendant

honored Humphrey’s request on July 3, 2021.

On July 20, 2021, Defendant provided Humphrey with four more pounds of

methamphetamine. Defendant directed Humphrey’s courier, Arnon Lake, to Heard’s residence.

Lake picked up the methamphetamine from Heard, and let Humphrey know that “it’s four.”

Meanwhile, on July 19, 2021, the Michigan State Police stopped Defendant for speeding

and arrested him for an outstanding warrant. During a search incident to arrest, they found a 9 mm

semiautomatic pistol in the glovebox. This was a problem for Defendant because he had a prior

felony conviction.

On August 3, 2021, law enforcement executed a search warrant at Heard’s residence. They

found 6.244 kilograms of 100% pure methamphetamine, 2.445 grams of a mixture containing

fentanyl, over $3,000, and two loaded firearms. One town over, in Holt, Michigan, officers

arrested Defendant. Prior to the arrest they observed Defendant leave his house and place an object

in the backseat of the car in his driveway, which a neighbor later reported was a Draco-style pistol.

Officers also observed a woman exit Defendant’s residence and place an assault-style weapon in

the car. After they arrested Defendant and conducted a search incident to arrest, the officers

discovered in plain view a Draco-style pistol and another firearm in the car. They also seized

approximately $40,000 in cash. They confiscated $6,945 from Lake the same day too.

A grand jury indicted Defendant, Humphrey, Heard, Lake, and three others on September

22, 2021, with conspiracy to distribute and possess with intent to distribute 50 grams or more of

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methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)(viii) (Count 1). A few

months later, Defendant was also charged with felon in possession of a firearm on July 19, 2021,

in violation of 18 U.S.C. § 922(g)(1) (Count 2), and felon in possession of firearms on August 3,

2021 (Count 7), in violation of 18 U.S. C. § 922(g)(1).

Heard and Lake were tried and convicted of the conspiracy charge. Defendant ultimately

pleaded guilty to a felony information charging him with conspiring to distribute

methamphetamine (Count 1) and being a felon in possession of a firearm (Count 2). In the plea

agreement1 Defendant waived his right to raise in the district court “or on appeal any affirmative

defenses, Fourth Amendment or Fifth Amendment claims, and other pretrial motions that could

have been filed.” Defendant also waived his right to appeal and bring collateral attacks, with

certain exceptions.

The presentence report2 set Defendant’s total offense level at 40. It started with a base

offense level of 38 under USSG § 2D1.1(a)(5), (c)(1), added five levels for possessing a firearm

under USSG § 2D1.1(b)(1) and for his role as a manager or supervisor, and then suggested a three-

level reduction for acceptance of responsibility. With a criminal history score of three based on

his prior federal conviction, Defendant’s criminal history category was II. This resulted in an

advisory guidelines range of 324–405 months. Defendant made two objections at the sentencing.

First, Defendant claimed that the evidence did not support the finding that he had supervised his

brother. Second, he argued that the 10:1 methamphetamine-to-ice ratio in USSG § 2D1.1(c)

should not apply.

1 Because Defendant’s prior plea agreement and its withdrawal are not relevant on appeal, we refer to this simply as the “plea agreement” rather than the “amended plea agreement.” 2 There is an earlier version of this report. We refer to this simply as the “presentence report.”

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At the sentencing hearing, Defendant argued that there was no evidence that he “recruited”

Heard or “controlled or managed his brother.” He claimed that Heard let him store his drugs at

the house but acknowledged that Heard likely benefitted financially from the arrangement. The

government responded that “[w]ire taps and other evidence show the defendant had a supervisory

role, at least over his brother in that location,” which the jury in Heard’s trial found was

Defendant’s “main stash location.” The government also referenced the July 1 and July 20, 2021,

wiretaps, Government Exhibits 11 and 25 in Heard’s trial, in which Defendant stated that he was

only comfortable leaving his drugs at his brother’s place and that he would have his brother deliver

some drugs. Finally, the government noted that Defendant’s cash-on-hand, $40,000, was

significantly more than an “average participant” like Lake, “who had about $7,000 on hand.”

The district court concluded that the aggravated role enhancement was proper based on the

government’s evidence and added several facts of its own. The court found it significant that

“[D]efendant selected the location and timing of sales to Mr. Humphrey, set the prices for the

drugs involved in the offense, the conspiracy clearly involved at least five people, and [Defendant]

directed or recruited at least one of those individuals, specifically his brother.” The court

concluded that Defendant was a manager or supervisor rather than an organizer or leader. The

court also stated that it did not have a policy disagreement with the 10:1 treatment of ice to

methamphetamine.

The court sentenced Defendant to 324 months on the conspiracy count and 120 months on

the felon-in-possession count, to run concurrently. Upon the court’s inquiry, Defendant stated that

he had no further legal objections to the sentence imposed.

This appeal follows.

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II.

We review sentencing decisions “under a deferential abuse-of-discretion standard.” Gall

v. United States, 552 U.S. 38, 41 (2007). An abuse of discretion occurs when a sentence is

procedurally or substantively unreasonable. Id. at 51.

A.

A sentence is procedurally unreasonable if the district court improperly calculated the

Guidelines range or selected a sentence based on clearly erroneous facts. Id. A “court relies on

clearly erroneous facts when the sentencing judge relies upon erroneous information and the

information in question appears to have been an important factor in determining the sentence.”

United States v. Cunningham, 669 F.3d 723, 730 (6th Cir. 2012) (cleaned up).

1.

Defendant argues his sentence was procedurally unreasonable because “the facts or issues

on which the district court relied . . . came as a surprise and [Defendant’s] presentation to the court

was prejudiced by the surprise.” United States v. Coppenger, 775 F.3d 799, 804 (6th Cir. 2015)

(citation omitted). At sentencing, the district court relied on Government Exhibits 11 and 25 from

Heard’s and Lake’s trial. These trial exhibits were not identified in the presentence report or

provided to Defendant. Because Defendant did not object below, however, our review is limited

to plain error. See United States v. Bostic, 371 F.3d 865, 872–73 (6th Cir. 2004). Under that

standard, we reverse only if we find (1) an error, that (2) is plain, (3) affects substantial rights, and

(4) jeopardizes the fairness or integrity of judicial proceedings. United States v. Vonner, 516 F.3d

382, 386 (6th Cir. 2008) (en banc).

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We find no error because the disputed facts were not “surprising” and were “reasonably

foreseeable.” See United States v. Zabel, 35 F.4th 493, 506 (6th Cir. 2022) (citation omitted). The

presentence report states that Defendant “recruited and directed his brother, Mr. Heard, while

receiving a greater share of the profits and is considered a manager or supervisor.” When

Defendant objected in his sentencing memorandum that “[s]uch evidence does not exist,”

probation officer reiterated that the enhancement was proper because Defendant “either recruited

his brother to store drugs at his home or directed him where they were to be stored.” Granted, the

addendum did not identify the evidence that supported that assertion, but the continuation of the

criminal complaint (i.e. DEA Edwin G. Parrott’s affidavit) did—it outlined the calls captured in

Exhibits 11 and 25. Compare R. 1-1, PID 18–20, 79-84, with R. 473-1, PID 4069 and R. 473-6,

PID 4084). In short, the issue of Defendant’s role in the organization was not “novel” and the

evidence of that role was “signaled” in the continuation of the criminal complaint. Cf. Coppenger,

775 F.3d at 804 (vacating sentence where district court considered a novel theory that was “neither

signaled in the presentence report nor otherwise reasonably foreseeable”). Not surprisingly, the

government offered “such evidence” at the sentencing hearing. Defendant did not act surprised at

the time or claim prejudice. See United States v. McCaskill, 202 F. App’x 70, 79 (6th Cir. 2006)

(holding that the district court could not be faulted for admitting at sentencing government exhibits

not provided to the defendant beforehand because the defendant did not claim surprise, objecting

simply on hearsay grounds). So, it’s hard to find any surprise or prejudice now and thus any plain

error.

One more point: Defendant argues that when he referred to “bro,” he did not necessarily

mean his brother or anyone in the conspiracy. Assuming Defendant was not supervising his actual

brother, however, the tapes revealed that he directed somebody in the house where he felt

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comfortable storing large amounts of methamphetamine to hand drugs over to Humphrey or

Humphrey’s agent. Thus, he was supervising at least one other person participating in the

conspiracy.

2.

Defendant complains that the district court erred in applying the aggravated role

enhancement, which applies when “the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or more participants or was otherwise

extensive.” USSG § 3B1.1(b). Factors to consider include “the degree of participation in planning

or organizing the offense,” “the claimed right to a larger share of the fruits of the crime,” and “the

degree of control and authority exercised over others.” USSG § 3B1.1 cmt. n.4. We have held

that to qualify for the enhancement under USSG § 3B1.1, the defendant must have exerted control

over at least one other person, United States v. Lalonde, 509 F.3d 750, 765 (6th Cir. 2007), “and

not merely the criminal scheme,” United States v. Kamper, 748 F.3d 728, 748 (6th Cir. 2014).

Simply buying drugs from or selling drugs to a drug trafficking organization does not alone confer

manager status. United States v. Schultz, 14 F.3d 1093, 1099 (6th Cir. 1994).

As discussed above, the evidence supported the district court’s finding that Defendant

stored his methamphetamine at his brother’s residence, instructed his brother (or another “bro” of

the conspiracy) to deliver it to others, and directed others to Heard’s residence for pickup. As the

district court found, he did not simply supply methamphetamine; he made decisions and directed

others. He received a much larger share of the profits than other participants—$40,000—when

compared to Lake’s $7,000 and Heard’s $3,000. And, contrary to his claim, the court was

reasonable in concluding that, at least some of the time, when Defendant referenced “bro” he meant

Heard, especially since he stored over 6.2 kilograms of methamphetamine at Heard’s residence.

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Defendant asserts that this case is “strikingly similar” to United States v. Hunsaker,

65 F.4th 1223 (10th Cir. 2023), where the court vacated the defendant’s aggravated role

enhancement under USSG § 3B1.1(b) for lack of evidence. It’s not. In that case, the court

concluded that a coconspirator’s statement that the defendant was “second in command” of a drug

trafficking organization was a conclusion, not a fact. Id. at 1229. Moreover, the statement was

never made part of the record. Id. at 1230. The defendant’s close relationship with the leader also

did not confer manager status, because none of his actions were “evidence of [] decision-making

authority or control over a subordinate.” Id. This case is like United States v. Griffin, 829 F. App’x

108 (6th Cir. 2020) (per curiam), where we affirmed an aggravated role enhancement because

there was testimony that the defendant was not only a supplier, but also “arranged and directed the

drug-related activities of several co-defendants,” such as delivering drugs and collecting drug

proceeds. Id. at 110. Here, the wiretaps establish Defendant’s managerial role in the conspiracy.

B.

A sentence is substantively unreasonable if the district court improperly weighs the

18 U.S.C. § 3553(a) factors resulting in a sentence that is “too long.” See United States v. Mosley,

53 F.4th 947, 964–65 (6th Cir. 2022). Defendant argues his sentence is substantively unreasonable

because the court used the 10:1 methamphetamine ratio in USSG § 2D1.1, which ties offense level

to purity for certain drugs, including methamphetamine. See generally United States v. Johnson,

812 F. App’x 329, 331–32 (6th Cir. 2020) (explaining that USSG § 2D1.1(a)(5) & (c) provides

graduated base offense levels depending on the purity and quantity of methamphetamine). A 1:1

ratio would have made Defendant’s guidelines imprisonment range 210 to 262 months.3 He argues

3 A 1:1 ratio would have made Defendant’s base offense level 34. With the same specific offense characteristics and Chapter Three adjustments, the total offense level would have been 36.

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that the 10:1 ratio is unfair because purity is correlated—mistakenly—with the defendant’s role in

the offense, which is already accounted for under the aggravated role enhancement. As Defendant

points out, several courts have agreed with this view. But, as Mosley noted, this “challenge to the

10:1 methamphetamine-mixture ratio amounts to little more than a policy disagreement with the

Guidelines, which the district court had discretion to reject.” 53 F.4th at 965. The district court

in this case stated on the record that it “d[id not] have a policy disagreement with the treatment of

ice methamphetamine.” Thus, as in Mosley, we find no abuse of discretion. See id. (involving the

same district court); see also Johnson, 812 F. App’x at 334 (holding that “[t]he district court did

not abuse its discretion by choosing not to disagree with the 10:1 ratio in the Guidelines on policy

grounds”).

C.

Newly minted on appeal is Defendant’s argument that we should vacate his § 922(g)(1)

conviction because the statute violates the Second Amendment in the light of the Supreme Court’s

decision in New York State Rifle & Pistol Association, Inc. v. Bruen. 597 U.S. 1, 17 (2022).4

This court has relied on District of Columbia v. Heller, 554 U.S. 570 (2008), to repeatedly

hold that felon-in-possession prohibitions do not violate the Second Amendment. See United

States v. Goolsby, No. 21-3087, 2022 WL 670137, at *2-3 (6th Cir. Mar. 7, 2022) (upholding

§ 922(g)(1) conviction; listing cases); United States v. Khami, 362 F. App’x 501, 507–08 (6th Cir.

2010) (upholding § 922(g)(1)); see also United States v. Bacon, 884 F.3d 605, 611-12 (6th Cir.

2018) (upholding § 922(d) conviction).

4 Defendant brings both a facial and an as-applied challenge.

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Defendant concedes that plain error review applies here because he did not raise this issue

in the district court. He argues that the waiver language in his plea agreement does not impede

our review because that language “did not specifically waive challenges to the statutory provision

under which he was convicted.” (citing Class v. United States, 583 U.S. 174, 176 (2018) (holding

that “a guilty plea by itself” does not bar a defendant from challenging the constitutionality of the

statute of conviction on appeal)).5 The government insists that the waiver language encompasses

this issue and bars our review. See generally United States v. Toth, 668 F.3d 374, 377–78 (6th Cir.

2012).

We sidestep Defendant’s possible waiver problem because of his certain forfeiture

problem. To satisfy the demanding plain error standard of review, the statute in question must be

“obviously unconstitutional.” United States v. Al-Maliki, 787 F.3d 791, 794 (6th Cir. 2015)

(emphasis in original). Stated a different way, an error is plain if it “is clear under current law.”

Id. (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). In view of the difference of

opinion within the circuits, that is difficult to show here. A circuit split, like we have here,

“precludes a finding of plain error.” Id. And without a finding of plain error, we cannot provide

Defendant with relief on this issue. Cf. United States v. Bowers, No. 22-6095, 2024 WL 366247,

at *3 (6th Cir. Jan. 31, 2024) (upholding a defendant’s conviction on plain error review because

“[n]o binding case law addresses the constitutionality of § 922(g)(1) in light of Bruen”); United

States v. Ramadan, No. 22-1243, 2023 WL 6634293, at *3 (6th Cir. Oct. 12, 2023) (upholding the

defendant’s § 922(j) & (k) convictions on plain error review because post-Bruen “there is no

5 Defendant also argues in the alternative that we should find ineffective of counsel. This argument is premature at this point and can be raised in a 28 U.S.C. § 2255 proceeding. See United States v. Zheng, 27 F.4th 1239, 1243 (6th Cir. 2022).

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binding case law or ‘good evidence’ before this court showing that the statutes are clearly

unconstitutional under current law”) (citation omitted).

III.

We affirm.

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