NOT RECOMMENDED FOR PUBLICATION File Name: 26a0024n.06
No. 25-5024
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jan 13, 2026 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY DAVAUGHN ELLIS WEST, ) Defendant-Appellant. ) OPINION )
Before: BATCHELDER, CLAY, and RITZ, Circuit Judges.
CLAY, Circuit Judge. Defendant Davaughn Ellis West was sentenced to 132 months in
prison and 4 years of supervised release after he pleaded guilty to one count of distribution of 40
grams or more of fentanyl, in violation of 21 U.S.C. § 841(a)(1). On appeal, Defendant argues
that his sentence is unreasonable. For the reasons set forth below, we AFFIRM the judgment of
the district court.
I. BACKGROUND
A. Factual Background
Between approximately February and June 2022, Defendant Davaughn Ellis West
conspired with Meagan Brittany Mounce and Anthony Trevell Norman to distribute oxycodone
pills, methamphetamine, and fentanyl. Defendant and Norman worked together to acquire
methamphetamine and fentanyl from multiple drug suppliers, and they provided those drugs to
dealers in Pulaski and Madison Counties, Kentucky. Mounce was one such dealer. No. 25-5024, United States v. West
From February to December 2022, the Federal Bureau of Investigation (“FBI”) utilized a
cooperating source (“CS”) to purchase various quantities of oxycodone, fentanyl, and
methamphetamine from Mounce, Norman, and Defendant. The CS initially purchased illegal
drugs from Mounce. During an April 26, 2022 transaction with Mounce, the CS met Defendant
and Norman when they delivered two ounces of fentanyl for the CS. Then, on May 10, 2022, the
FBI used the CS to purchase 445.8 grams of methamphetamine from Defendant. In total,
Defendant delivered 9,057.75 kilograms of converted drug weight to the CS.
B. Procedural History
On February 22, 2024, a federal grand jury returned an indictment against Defendant. The
indictment charged Defendant with one count of attempt and conspiracy, two counts of knowingly
or intentionally manufacturing, distributing, or dispensing, or possessing with intent to
manufacture, distribute, or dispense, a controlled substance, and one count of aiding and abetting,
in violation of 21 U.S.C. § 846, 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2, respectively.
Defendant signed a plea agreement and pleaded guilty to one count in violation of
21 U.S.C. § 841(a)(1). In exchange for his plea, the government agreed to move to dismiss the
other counts against Defendant at his sentencing hearing.
The United States probation department then prepared a pre-sentence report (“PSR”). The
PSR calculated Defendant’s base offense level at 32 with a three level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a). With a criminal history category of V and total
offense level of 29, Defendant’s proposed Guidelines range was 140 to 175 months.
Defendant raised several objections to the PSR. First, Defendant claimed his base offense
level was incorrect because in the plea agreement, the parties did not agree to a quantity of
narcotics determining the Guidelines calculations, and there was no evidence that any drugs were
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transacted on May 10, 2022. Second, Defendant claimed that the May 10, 2022 transaction was
not relevant conduct under U.S.S.G § 1B1.3(a)(2) to the § 841(a)(1) violation to which he had
pleaded guilty. Third, as a result of his first two objections, Defendant claimed that his base
offense level should be 24 with a Guidelines range of 70 to 87 months. Fourth, Defendant averred
that a downward departure under U.S.S.G. § 4A1.3(b)(1) was warranted because half of his
criminal history points came from prior possession of marijuana convictions.
The district court held Defendant’s sentencing hearing on January 3, 2025. At the hearing,
the court allowed the government to present witnesses and evidence in response to Defendant’s
objections. The government first presented the CS as a witness to testify as to his controlled drug
transactions with Defendant, Mounce, and Norman. On direct examination and while referencing
video footage of the CS’s interactions with Defendant, the CS testified that he had purchased one
pound of methamphetamine from Defendant for $3,500 on May 10, 2022. In total, the transaction
took approximately four to five hours to complete since Defendant left the CS in order to source
the drugs. The CS also stated that he and Defendant had discussed the methamphetamine sale and
$3,500 sale price during the April 26, 2022 drug transaction for two ounces of fentanyl.
On cross-examination, Defendant’s attorney questioned the CS’s sobriety during the two
drug transactions and his motivations for assisting the FBI with the investigation. The CS admitted
that he was a “[l]ittle bit” high during the April 26, 2022 controlled buy from taking a “nerve pill.”
Sentencing Hr’g Tr., R. 118, PageID #513. He also stated that he was previously addicted to
Suboxone for approximately three years prior to the transactions, but was no longer addicted when
he was approached by the FBI to assist with the controlled buys. The CS stated that during the
May 10, 2022 controlled buy, he was on Xanax because he was nervous about the transaction.
When asked why he assisted the FBI, the CS cited the need to support his two children.
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The government then presented FBI Special Agent Mike McLaughlin for examination.
Agent McLaughlin testified as to his supervisory role over the April 26, 2022 and May 10, 2022
controlled buys, as well as what the CS relayed to him about the CS’s conversations with
Defendant about the drug transactions. Agent McLaughlin noted that the recording device used
by the CS during the May 10, 2022 transaction “ran out of battery and . . . recording space” because
the deal took so long. Id. at PageID #532–33. Thus, the video recording did not capture the part
of the transaction when the CS actually received the drugs. The agent also testified, however, that
the CS provided him the drugs from the May 10, 2022 transaction, which turned out to be 445.8
grams of methamphetamine after further laboratory testing.
The district court then heard argument on Defendant’s first objection. The court found the
CS’s testimony to be credible; although the CS admitted to being on Xanax during the May 10,
2022 controlled buy, the court noted how “his testimony [was] not contradicted in any way” by
the portions of the transaction the video recording captured. Id. at PageID #549. The court also
noted that Agent McLaughlin, who it presumed was “experience[d] dealing with people who are
compromised,” “[s]aw no indication” that the CS was compromised. Id. Thus, the court credited
the CS’s testimony and the video tape recording to conclude that Defendant “was the author and
completer of [the May 10, 2022] transaction.” Id. at PageID #550. The court therefore overruled
Defendant’s first objection by concluding that the evidence supported the government’s claim that
the transaction “involved a pound of crystal [meth] for $3,500.” Id.
The district court next considered Defendant’s second objection. It disagreed with
Defendant’s claim that U.S.S.G. § 1B1.3(a)(2) “only applies when there are multiple offenses of
conviction.” Id. at PageID #564. The court noted that the text of § 1B1.3(a)(2) was “clear and not
ambiguous” since “[n]othing in the construction of . . . 1B1.3 or the general approach to the
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guideline suggest[ed]” to the court that § 1B1.3(a)(2) “only applies when there are multiple
offenses of conviction.” Id. The court further explained that § 1B1.3(a)(2)’s reference to “offenses
of a character [for which § 3D1.2(d) would require grouping of multiple counts]” was simply a
standard for the type of offense that would constitute “expanded relevant conduct.” Id. at PageID
#564–65. Accordingly, the district court overruled Defendant’s second and third objections.
The government then moved to dismiss Counts 1 and 5 of the indictment, in accordance
with the plea agreement, and the district court granted the motion. The district court proceeded to
sentence Defendant on his sole § 841(a)(1) offense under Count 4. It calculated Defendant’s
offense level and criminal history category in accordance with the PSR and determined
Defendant’s Guidelines range to be 140 to 175 months.
At this point in the hearing, the district court heard argument on Defendant’s fourth
objection. It determined that Defendant’s prior October 11, 2023 state conviction for simple
possession of 4.4 grams of marijuana was likely not trafficking. Accordingly, the court departed
under § 4A1.3 and modified Defendant’s criminal history category from a V to a IV, thereby
reducing his Guidelines range to 121 to 151 months. The court declined to find that Defendant’s
other two prior drug offenses were only for personal use, citing the quantity of marijuana in
Defendant’s possession at the time of the drug arrests. The district court also noted that it would
not depart further based on Defendant’s age at the time of his prior state drug offenses. According
to the court, Defendant’s “sort of continuing involvement with like crimes through the years . . .
thin[ned] the age argument a bit.” Id. at PageID #583.
With the criminal history departure in mind, the court considered the 18 U.S.C. § 3553(a)
factors it deemed relevant to sentence Defendant. The district court ultimately sentenced
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Defendant to 132 months imprisonment and 4 years of supervised release. Defendant’s timely
appeal followed.
II. DISCUSSION
A. Standard of Review
We generally review sentences imposed following conviction under the abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Bolds, 511 F.3d 568, 578
(6th Cir. 2007). Under this deferential standard, “we may overturn a sentence only if it is
procedurally or substantively unreasonable.” United States v. Kontrol, 554 F.3d 1089, 1092 (6th
Cir. 2009).
“Whether a district court properly applied a sentencing enhancement is a matter of
procedural reasonableness.” United States v. Taylor, 85 F.4th 386, 388 (6th Cir. 2023). Where a
district court’s determination of “relevant conduct” under U.S.S.G. § 1B1.3(a)(2) “involves the
application of law to fact, we review the district court’s determination de novo.” United States v.
Shafer, 199 F.3d 826, 830 (6th Cir. 1999).
B. Analysis
1. The Sentence’s Procedural Reasonableness
A sentence is procedurally reasonable if a district court “explain[s] its reasoning to a
sufficient degree to allow for meaningful appellate review.” United States v. Zobel, 696 F.3d 558,
566 (6th Cir. 2012) (quoting United States v. Brogdon, 503 F.3d 555, 559 (6th Cir. 2007)). “A
district court commits reversible procedural error by ‘failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
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explain the chosen sentence—including an explanation for any deviation from the Guidelines
range.’” Id. (quoting Gall, 552 U.S. at 51).
Defendant raises four procedural reasonableness challenges to his sentence. First,
Defendant challenges the sufficiency of the evidence underlying the district court’s determination
that Defendant and not Norman provided the CS with the methamphetamine on May 10, 2022.
Second, Defendant avers that the unindicted May 10, 2022 transaction was not “relevant conduct”
under § 1B1.3(a)(2). Third, Defendant argues that the district court should have departed further
and removed his other three prior state drug possession charges from his criminal history score
calculation, which would have placed him in a criminal history category III. Fourth, Defendant
claims that the district court did not consider Defendant’s request for a departure under U.S.S.G.
§ 5H1.1 or adequately explain its reasoning for rejecting the request. For the reasons discussed
below, none of Defendant’s arguments have merit.
a. Sufficiency of Evidence Underlying the District Court’s Drug Quantity Calculation
When the precise quantity of drugs attributable to a defendant is uncertain, “a district court
should ‘err on the side of caution’ and ‘only hold the defendant accountable for a specific quantity
for which he is more likely than not actually responsible.’” United States v. Mosley, 53 F.4th 947,
962 (6th Cir. 2022) (quoting United States v. Johnson, 732 F.3d 577, 581 (6th Cir. 2013)). An
estimate is sufficient when it is supported by a preponderance of the evidence. Id.
“The district court’s estimate may be based upon physical evidence (such as seized drugs)
or testimonial evidence.” United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008). “We ‘afford
the district court’s credibility determinations regarding witness testimony great deference.’” Id.
(quoting United States v. Esteppe, 483 F.3d 447, 452 (6th Cir. 2007)). We review the district
court’s drug quantity finding for clear error and will uphold it “if it is supported by competent
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evidence in the record.” Id. “Clear error will not be found where two permissible views of the
evidence exist.” Id.
It is uncontroverted that Defendant provided 2 ounces of fentanyl to the CS during the
April 26, 2022 controlled buy and that the CS received 445.8 grams of methamphetamine during
the May 10, 2022 controlled buy. Defendant merely contests whether there was sufficient
evidence to support the district court’s finding that Defendant and not Norman was responsible for
providing the 445.8 grams of methamphetamine during the May 10, 2022 controlled buy. To
support his challenge, Defendant assails the credibility of the CS’s testimony at the sentencing
hearing. Defendant claims that the district court erred in relying on the CS’s “shaky, at best,
testimony” because the CS had a drug addiction, continued to use drugs, had poor memory, and
“appeared evasive and defensive when asked about why he was assisting law enforcement in the
controlled deals.” Defendant’s Br., at 14–15. Agent McLaughlin’s testimony and the video
recording evidence cannot corroborate the CS’s testimony, according to Defendant, because Agent
McLaughlin never observed the transaction and the video recording device failed to show who
actually handed the CS the methamphetamine.
We disagree with Defendant. The CS testified that Defendant gave him the pound of
methamphetamine on May 10, 2022. That quantity of methamphetamine was purchased for
$3,500, an amount and price Defendant and the CS had agreed to during the prior April 26, 2022
fentanyl controlled buy. Though the CS admitted he was high on a nerve pill at the time of the
fentanyl sale and high on Xanax at the time of the methamphetamine sale, his testimony was
consistent with what the video recording captured of both sales. We therefore see no reason from
the record to doubt the district court’s determination that the CS’s testimony was sufficiently
reliable for the court to conclude that Defendant was responsible for the 445.8 grams of
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methamphetamine involved in the May 10, 2022 controlled buy. The CS’s testimony, the video
recording evidence, and Agent McLaughlin’s testimony, show by a preponderance of the evidence
that Defendant sold the methamphetamine to the CS on May 10, 2022. Accordingly, the district
court did not commit clear error when it found Defendant responsible for the methamphetamine.
b. Relevant Conduct Under U.S.S.G. § 1B1.3
Defendant next argues that the May 10, 2022 controlled buy was not unindicted “relevant
conduct” under § 1B1.3(a)(2) that could be included in the district court’s base offense level
calculation. The government, however, claims that Defendant either waived this argument before
the district court or invited the error. In either instance, the government contends that we cannot
consider Defendant’s argument.
“Waiver is the ‘intentional relinquishment or abandonment of a known right.’” Walker v.
United States, 134 F.4th 437, 440 (6th Cir. 2025) (quoting United States v. Olano, 507 U.S. 725,
733 (1993)). Generally, “a litigant waives a legal claim by initially raising the claim and then
explicitly abandoning it later.” Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000, 1011 (6th
Cir. 2022). We cannot review a right “a defendant . . . knows of and actively abandons.” United
States v. Montgomery, 998 F.3d 693, 697 (6th Cir. 2021).
We have recently described waiver as being on a “continuum[:]” “each additional
indication that a party intentionally abandoned an argument rather than merely overlooked it . . .
[pushes] the party’s conduct . . . further along that continuum toward[s] waiver.” Walker, 134
F.4th at 441. “A party’s conduct slides toward waiver where there is evidence of a ‘deliberate
decision to actively abandon an issue.’” United States v. Smith, No. 24-1797, 2025 WL 3089937,
at *2 (6th Cir. Nov. 5, 2025) (quoting Walker, 134 F.4th at 440).
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Defendant’s counsel expressly and explicitly abandoned his “relevant conduct” argument
before the district court. During the sentencing hearing, the district court explained its rationale
for finding the May 10, 2022 controlled buy to be relevant conduct to the April 26, 2022 charged
conduct. The court then asked Defendant’s counsel if “he ha[d] an argument [he] want[ed] to put
on the record about why [the May 10, 2022 controlled buy] would not be the same course of
conduct or common scheme or plan” as the indicted April 26, 2022 controlled buy. Sentencing
Hr’g Tr., R. 118, PageID #567. The dialogue between Defendant’s counsel and the district court
proceeded as follows:
MR. LYONS: I thought about it, Your Honor, and based on the guidance from the case law, I’ve got similar type transactions, we’ve got the same parties involved, we’ve got too many similarities for me to make any kind of real effective argument about common plan or scheme, course of conduct. That’s kind of the reason I went direction the I went.
THE COURT: Okay.
MR. LYONS: So the answer is no.
Id. at PageID #567–68.
Defense counsel’s admission is a waiver under our precedents. See United States v.
Aparco–Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002) (“An attorney cannot agree in open court
with a judge’s proposed course of conduct and then charge the court with error in following that
course.” (quoting United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990)); cf. United States v.
Hall, 373 F. App’x 588, 592 (6th Cir. 2010) (finding waiver of argument that defendant was not
an armed career criminal where defense counsel had “expressly conceded” the Armed Career
Criminal Act’s applicability to defendant at sentencing by stating “I recognize my client has the
criminal history that he does, and I certainly understand that he’s a, pursuant to statute, an armed
career criminal,” and admitting that his client was subject to a “‘15[-]year[] minimum mandatory’
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sentence”). By admitting that he could not effectively argue against the district court’s finding
that the May 10, 2022 controlled buy was relevant conduct to the April 26, 2022 controlled buy,
Defendant’s counsel explicitly waived this argument. We therefore decline to review Defendant’s
“relevant conduct” argument on appeal. See Montgomery, 998 F.3d at 698.
c. Departure Under U.S.S.G. § 4A1.3
Next, Defendant appeals the district court’s refusal to grant his request for a downward
departure under U.S.S.G. § 4A1.3 on all of his three prior state convictions for simple possession
of marijuana, which would have reduced his criminal history score to a III.
“[W]e [typically] do not review a district court’s decision not to depart downward unless
the record shows that the district court was unaware of, or did not understand, its discretion to
make such a departure.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008). While we
do not require a district court to explicitly acknowledge its discretion to make a departure, see id.,
the record is clear that the district court knew it had discretion to grant Defendant’s request. See
Sentencing Hr’g Tr., R. 118, at PageID #579 (“I appreciate the argument and the departure request.
It is permissive, so certainly I recognize the Court has the power to do it. There is some discretion
there.”). This acknowledgement was more than enough under our precedents. See, e.g.,
Santillana, 540 F.3d at 432 (concluding the district court was aware of its authority to depart
downwards when the court stated it could “under certain circumstances . . . impose a sentence
below a statutory minimum”). Accordingly, the district court did not abuse its discretion when it
considered each of Defendant’s three prior state simple possession of marijuana convictions and
concluded that only one of the convictions warranted a departure under U.S.S.G. § 4A1.3.
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d. Departure Under U.S.S.G. § 5H1.1
Finally, Defendant argues that the district court failed to consider his request for a departure
pursuant to U.S.S.G. § 5H1.1 or explain why it rejected his request. To be sure, a district court
commits procedural error “when ‘a defendant raises a particular argument in seeking a lower
sentence’” and “the record [does not] reflect that the district court considered the defendant’s
argument and that the judge explained the basis for rejecting it.” United States v. Jones, 489 F.3d
243, 251 (6th Cir. 2007) (quoting United States v. Richardson, 437 F.3d 550, 553–54 (6th Cir.
2006)). Defendant avers that he requested this departure due to the Defendant’s age at the time of
his first state conviction, but the district court simply stated that “[it] was not going to depart based
on age.” Sentencing Hr’g Tr., R. 118, PageID #583. But this is an incomplete representation of
the district court’s reasoning. Indeed, at the sentencing hearing the district court explained:
THE COURT: Well, I see the power to consider age according to the policy statement. I’m not going to depart based on age, but I’ll certainly hear the argument as part of 3553. If it were isolated at that young age, I would be a little more drawn to the persuasiveness of it.
But he’s had sort of continuing involvement with like crimes through the years which, to me, thins the age argument a bit. Okay. That’s where we are on departures.
Id. The record thus demonstrates that the district court considered Defendant’s departure request
and explained why it declined to depart pursuant to § 5H1.1. In doing so, the district court did not
abuse its discretion.
2. The Sentence’s Substantive Reasonableness
Defendant then challenges the substantive reasonableness of his within-Guidelines range
132 month sentence. A sentence is substantively reasonable if it is “proportionate to the
seriousness of the circumstances of the offense and offender, and sufficient but not greater than
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necessary, to comply with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512
(6th Cir. 2008) (citation modified). But, “[a] sentence is substantively unreasonable if the district
court selects a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider
relevant sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”
United States v. Mahbub, 818 F.3d 213, 232 (6th Cir. 2016) (quoting United States v. Camiscione,
591 F.3d 823, 832 (6th Cir. 2010)).
“The starting point for substantive reasonableness review is the Guidelines range, because
‘in the ordinary case, the Commission’s recommendation of a sentencing range will reflect a rough
approximation of sentences that might achieve § 3553(a)’s objectives.’” United States v. Perez-
Rodriguez, 960 F.3d 748, 754 (6th Cir. 2020) (quoting Kimbrough v. United States, 552 U.S. 85,
109 (2007)). We may apply a presumption of reasonableness where, as in the instant case, the
district court sentences Defendant within his correctly calculated Guidelines range. Gall, 552 U.S.
at 51.
Defendant raises two substantive reasonableness challenges to his presumptively
reasonable sentence. Neither has merit. First, Defendant appears to argue that the district court
should have given more weight to his history and characteristics, pursuant to § 3553(a)(1). But
the district court considered this factor during sentencing and explicitly made note of Defendant’s
tumultuous upbringing and past. We cannot reverse the district court’s sentence simply because
we “might reasonably have concluded that a different sentence was appropriate.” Id. at 51. So
long as “the district court considered and weighed all relevant § 3553(a) factors, . . . the defendant
bears ‘a much greater burden in arguing that the court has given an unreasonable amount of weight
to any particular one.’” United States v. Zabel, 35 F.4th 493, 508 (6th Cir. 2022) (quoting Zobel,
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696 F.3d at 571). Defendant fails to meet this burden, so we find that the district court did not
abuse its discretion when it weighed Defendant’s history and characteristics.
Finally, Defendant argues that the district court failed to consider the sentencing disparity
between the sentences that he and his co-conspirator, Norman, received, pursuant to § 3553(a)(6).
This argument is flawed in two respects. We have explained that § 3553(a)(6) “‘is concerned with
national disparities among the many defendants with similar criminal backgrounds convicted of
similar criminal conduct,’ not ‘disparities between’ codefendants.” United States v. Thomas, 933
F.3d 605, 613 (6th Cir. 2019) (quoting United States v. Simmons, 501 F.3d 620, 623 (6th Cir.
2007)). Further, Defendant and Norman have dissimilar criminal records. Norman was sentenced
under a criminal history category III whereas Defendant was sentenced under a higher criminal
history category IV. Accordingly, we do not find that Defendant’s sentence was substantively
unreasonable.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the district court.
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