United States v. David Hansberry

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 13, 2019
• Docket: 17-1383
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0304n.06

Nos. 17-1205, 17-1221, & 17-1383

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jun 13, 2019 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF MICHIGAN BRYAN WATSON (No. 17-1205); DAVID ) HANSBERRY (Nos. 17-1221/1383), ) OPINION ) Defendants-Appellants. ) )

Before: BOGGS, KETHLEDGE, and NALBANDIAN, Circuit Judges.

NALBANDIAN, Circuit Judge. Bryan Watson and David Hansberry worked as

undercover narcotics agents for the Detroit Police Department. And as it turned out, they were

dirty cops—using their positions as police officers to steal drugs and money from drug dealers.

But this case is not about whether Defendants committed a crime. Instead, this case is about

figuring out what crime Defendants committed. The government charged Defendants with

conspiracy to commit extortion under the Hobbs Act. The jury agreed and returned a guilty verdict.

Defendants, however, claim they committed robbery, not extortion. This would be a problem for

the government because they didn’t charge Defendants with robbery. So if the jury convicted

Defendants of the wrong crime, we must vacate their sentences.

But Defendants’ argument goes only so far. While some of Defendants’ conduct might

fall under Hobbs Act robbery, other conduct falls under Hobbs Act extortion. This is enough.

Said another way, the government introduced enough evidence at trial to support Defendants’ Nos. 17-1205/1221/1383, United States v. Watson, et al.

extortion convictions. Defendants also challenge other aspects of the trial and sentencing, such as

comments the district court made during voir dire, the sufficiency of the jury instructions, allegedly

false statements from a government witness, and enhancements and inconsistencies with the

sentences. But none of these challenges warrant a retrial or resentencing. We affirm.

I.

For years, Defendants stole drugs and money from drug dealers. The basic con went as

follows: Defendants would raid a house or stop a car (generally with the help of an informant)

knowing that drugs and money would be there. These pretextual raids would surprise the drug-

dealing victims, and as several of them testified, would scare them “to death” about getting arrested

or hurt. So the victims would hand over their drugs and money to Defendants. And once

Defendants got what they wanted, they would leave without making arrests or filing charges.

Instead, Defendants would keep the money and sell the drugs (generally with the help of the same

informant), splitting the profits. And if Defendants did report the bust, they would first take some

money or drugs “off the top.” For example, if they seized $100,000, they would keep $20,000 and

report only $80,000. Or if they seized ten kilos of cocaine, they would keep two kilos and report

only eight kilos. Other witnesses testified about their expanded interactions with Defendants.

Several victims, facing arrest or criminal charges, agreed to give Defendants drugs and money. In

exchange, Defendants agreed to protect them from arrest or make the charges disappear.

Defendants do not seriously challenge this conduct on appeal—apart from characterizing

it as “just part of the job” of an undercover cop. Rather, Defendants challenge whether they were

indicted and convicted of the correct crime. Defendants argue that, at most, the evidence shows

2 Nos. 17-1205/1221/1383, United States v. Watson, et al.

that they committed robbery under the Hobbs Act. See 18 U.S.C. § 1951(b)(1). The government,

however, charged Defendants with extortion under the Hobbs Act. See id. § 1951(b)(2). This

included one count of conspiracy to commit extortion, six substantive counts of extortion, drug

charges, and a firearm charge.

Defendants have a bit of a point. The jury acquitted Defendants of the drug charges, the

firearm charge, and all six specific instances of extortion. That means that the jury did not believe,

beyond a reasonable doubt, that Defendants extorted drugs and money from the six specific victims

listed in the indictment. This left just one crime: conspiracy to commit extortion.

The jury struggled with the conspiracy charge. During deliberations, the jury sent out a

question, “must a jury find guilt on at least one other count (3 to 10) for [conspiracy] to apply?”

(R. 236 at 5.) The jury was questioning whether it could convict Defendants of conspiracy to

commit extortion even if it acquitted Defendants of every specific instance of extortion. The

parties agreed that the jury could.

Later, the jury interrupted its deliberations again, telling the district court that it was

“deadlocked on the charges.” (R. 237 at 5.) The district court, however, read an Allen charge to

the jury because, at this point, the jury had deliberated for less than two days. The district court

reminded the jury of its duties and the importance of a unanimous verdict—and asked the jury to

“return to the jury room and resume your deliberations.” (Id. at 9.) These instructions worked.

The jury eventually returned a unanimous verdict, acquitting Defendants of the six substantive

counts of extortion, yet convicting Defendants of conspiracy to commit extortion.

3 Nos. 17-1205/1221/1383, United States v. Watson, et al.

Defendants argue that this inconsistent verdict shows that something went wrong.

According to Defendants, an error occurred because the jury was confused between robbery and

extortion. Defendants think the jury improperly convicted them of conspiracy to commit robbery,

even though they were charged with conspiracy to commit extortion.

But this is not the first time we have seen a jury convict a defendant for conspiracy while

acquitting them of the underlying substantive charges. See, e.g., United States v. Myint, 455 F.

App’x 596, 603 (6th Cir. 2012) (finding defendant guilty of conspiracy to defraud Medicare but

acquitting him of three counts of Medicare fraud). We explained how this can happen: the jury

could acquit the substantive charges “because the government simply had not proved beyond a

reasonable doubt that [the defendant] acted on these occasions.” Id. (citing United States v. Chen,

378 F.3d 151 (2d Cir. 2004)). But that does not necessarily mean the government also failed to

introduce evidence of the overall conspiracy. This would explain the verdict here.

So to figure out what happened, we must determine whether the government indicted and

convicted Defendants of the correct crime. And whether the government introduced enough

evidence of the correct crime at trial. We start by evaluating the subtle differences between

extortion and robbery under the Hobbs Act.

II.

The Hobbs Act makes it unlawful to interfere with commerce “by robbery or extortion.”

18 U.S.C. § 1951(a). Robbery “means the unlawful taking or obtaining of personal property from

. . . another, against his will, by means of actual or threatened force, or violence, or fear of injury[.]”

Id. § 1951(b)(1). In contrast, extortion “means the obtaining of property from another, with his

4 Nos. 17-1205/1221/1383, United States v. Watson, et al.

consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of

official right.” Id. § 1951(b)(2). The main difference between robbery and extortion is consent

and force. Ocasio v. United States, 136 S. Ct. 1423, 1435 (2016). Robbery occurs when property

is taken from the victim “against his will.” 18 U.S.C. § 1951(b)(1). Extortion occurs when a

victim gives up property “with his consent.” Id. § 1951(b)(2). But this does not mean the victim

is happy to give up the property. Instead, consent still occurs if it is “grudging consent”—or if the

consent “is merely complying with an official demand.” Ocasio, 136 S. Ct. at 1435.

This difference can become technical and academic to parse out. But picture it this way:

a suspect robs someone when he snatches a purse off a victim’s arm; a suspect extorts someone

when he threatens a victim and persuades her to hand over the purse. In both situations, the suspect

unlawfully took the purse. But in doing so, the suspect used different methods. In the first

scenario, the suspect grabbed the purse away from the victim. But in the second scenario, the

victim agreed to surrender the purse. This is the basic difference between “against his will” and

“with his consent.”

To make things more complicated, extortion also has two different theories of liability.

Extortion can occur either (1) through the threat of force, violence, or fear; or (2) through “the

color of official right”—i.e., by a public official. United States v. Kelley, 461 F.3d 817, 826 (6th

Cir. 2006). Under the latter, a public official’s extortion may—or may not—include threats of

force, violence, or fear. See id. at 826. Extortion by a public official does, however, require some

quid pro quo. This means that the victim gives up her property to the public official in exchange

for something else. See Extortion, Black’s Law Dictionary 1443 (10th ed. 2014).

5 Nos. 17-1205/1221/1383, United States v. Watson, et al.

The quid pro quo requirement comes from the Supreme Court’s decision in Evans v. United

States, 504 U.S. 255, 268 (1992).1 To establish extortion by a public official, the Supreme Court

explained “that the Government need only show that a public official has obtained payment to

which he was not entitled, knowing that the payment was made in return for official acts.” Id.

(emphasis added). In other words, extortion by a public official is “the rough equivalent of what

we would now describe as ‘taking a bribe.’” Id. at 260; Collins, 78 F.3d at 1034 (quoting United

States v. Farley, 2 F.3d 645, 651 (6th Cir. 1993)).

The Supreme Court also gave several examples of quid pro quo agreements that would

constitute extortion. See Evans, 504 U.S. at 269–70 (collecting cases). For example, it was

extortion when an officer “received $1,000 for not arresting someone who had stolen money.” Id.

at 270 (citing State v. Barts, 38 A.2d 838, 841 (N.J. 1944)). Indeed, there was an explicit

agreement: a friend delivered the money and “told [the officer] ‘that he was giving him that money

($1,000) to keep [the suspect] out of jail,’ and [the officer] replied that the girl ‘wouldn’t go to

1 This is not necessarily the correct path. See Ocasio, 136 S. Ct. at 1437 (Thomas, J., dissenting) (“In my view, the Court started down the wrong path in Evans . . . , which wrongly equated extortion with bribery.”); Evans, 504 U.S. at 286 (Thomas, J., dissenting) (“This quid pro quo requirement is simply made up.”). And the quid pro requirement could be limited to situations in which the alleged extortion is the “receipt of political contributions.” See McCormick v. United States, 500 U.S. 257, 271 (1991); see also id. at 276–77 (Scalia, J., concurring) (“I find it unusual and unsettling, however, to make such a distinction without any hint of a justification in the statutory text: § 1951 contains not even a colorable allusion to campaign contributions or quid pro quos.”). Still, we are bound by our precedent. See United States v. Collins, 78 F.3d 1021, 1035 (6th Cir. 1996) (“We now join these circuits in holding that the quid pro quo requirement applies to all § 1951 extortion prosecutions [under color of official right], not just those involving campaign contributions.”). And the requirement that the government show a quid pro quo agreement does not change the result for Watson or Hansberry. 6 Nos. 17-1205/1221/1383, United States v. Watson, et al.

jail.’” Barts, 38 A.2d at 842; see also Evans, 504 U.S. at 270 (citing White v. State, 56 Ga. 385,

389 (1876) (explaining that extortion would occur if an officer took money and “agree[d] to use it

in settling a pending or threatened prosecution”)). Likewise, it was extortion when an officer

accepted money for turning a blind eye to illicit activities, such as “the running of a gambling

house.” Evans, 504 U.S. at 270 (citing State v. Sweeney, 231 N.W. 225, 228 (Minn. 1930)).

Still, completion of the quid pro quo is not required. See Evans, 504 U.S. at 268. Nor is

an explicit agreement or any expressed terms. Id. at 274 (Kennedy, J., concurring in part and

concurring in the judgment). Instead, the quid pro quo can be accomplished through “winks and

nods” and “implied from . . . words and actions.” Collins, 78 F.3d at 1034 n.10 (quoting Evans,

504 U.S. at 274 (Kennedy, J., concurring)). This includes a classic “shakedown” situation—where

a victim agrees to pay money out of fear or the need for protection. Ocasio, 136 S. Ct. at 1435. It

is also “sufficient if the public official understood that he or she was expected to exercise some

influence on the payor’s behalf as opportunities arose”—such as not arresting or charging

someone. United States v. Abbey, 560 F.3d 513, 518 (6th Cir. 2009). It is this “use of public office

to benefit one’s personal financial status . . . [that] is precisely the evil that ‘under color of official

right’ extortion was designed to prevent.” United States v. Blandford, 33 F.3d 685, 699 (6th Cir.

1994).

In sum, for Hobbs Act extortion, the government needed to prove that Defendants

conspired to (1) obtain someone else’s property; (2) with the victim’s consent; and (3) by either

(A) threatening force, violence, or using fear to induce consent, or (B) obtaining consent through

7 Nos. 17-1205/1221/1383, United States v. Watson, et al.

their roles as public officials in exchange for something else. See 18 U.S.C. § 1951(b)(2); see also

Collins, 78 F.3d at 1035.

III.

Defendants’ main complaint is that they never had a quid pro quo agreement with any of

their victims. Defendants argue that, at most, they snatched drugs and money from unwilling drug

dealers, amounting to robbery. But the government sees it differently: Defendants persuaded their

victims to hand over drugs and money to avoid getting arrested, amounting to extortion.

Defendants make this “robbery versus extortion” argument in two ways. First, Hansberry argues

that we should throw out the indictment because it failed to properly charge extortion—and

because the indictment included no quid pro quo allegations. Second, Defendants argue that we

should throw out the convictions because, at trial, the government failed to introduce any evidence

of a quid pro quo agreement between Defendants and their drug-dealing victims.

As a threshold issue, both arguments ignore the alternative theory of liability for Hobbs

Act extortion: taking property by threatening force, violence, or using fear to induce consent. See

18 U.S.C. § 1951(b)(2); see also Kelley, 461 F.3d at 826 (distinguishing the two theories of

extortion under the Hobbs Act). This type of extortion occurs when “the defendant purports to

have the power to hurt the victim in economic [or physical] terms and fear is induced.” United

States v. Valenzeno, 123 F.3d 365, 369 (6th Cir. 1997); see also United States v. Billingsley, 474

F.2d 63, 66–67 (6th Cir. 1973). This form of extortion requires no quid pro quo. And the defendant

need not expressly threaten the victim. Instead, “[i]t is enough if the fear exists and the defendant

intentionally exploits it.” United States v. Williams, 952 F.2d 1504, 1513–14 (6th Cir. 1991). In

8 Nos. 17-1205/1221/1383, United States v. Watson, et al.

other words, if the person exploiting the victim’s fear induces the victim to give up his property,

extortion occurred.

In assessing this fear, “statements by the victim indicating fear of the defendant are

admissible to prove the ‘force of fear’ element of extortion.” United States v. Kilpatrick, 798 F.3d

365, 386 (6th Cir. 2015) (citation omitted). Indeed, “[t]he victim’s fearful state of mind is a crucial

element in proving extortion.” Id. (quoting United States v. Hyde, 448 F.2d 815, 845 (5th Cir.

1971)). For example, a couple found themselves in the middle of an IRS audit, facing possible tax

evasion charges. Valenzeno, 123 F.3d at 367. The couple had “real fears of economic loss or

potential imprisonment”—and the defendant exploited those fears to take money from the couple.

Id. at 369. This was extortion through fear. See also, e.g., Williams, 952 F.2d at 1513 (citing

United States v. Lisinski, 728 F.2d 887, 892 (7th Cir. 1984) (exploiting a restaurant owner’s “fear

of losing his liquor license” to extract money)).

Here, we have evidence of Defendants exploiting such fears. Several victims testified

about their fears of getting arrested or hurt when Defendants conducted their fake raids. One

victim testified that, “I was just afraid. I didn’t know what to think. I was just terrified.” (Renee

Williams Test., R. 218 at 185.) Another victim testified, “I was scared”—and explained how this

fear kept him quiet after Defendants took his cocaine. (Richard Jones Test., R. 219 at 51–52.) Yet

another victim, when Defendants took his money and pills, explained that he “was scared to

death”—not only “of being charged with a crime,” but also for “[his] life.” (Chester Browning

Test., R. 220 at 139–42.) And other victims testified that their fears caused them to run away from

Defendants, leaving $280,000 worth of cocaine behind. (Rafael Vasquez Test., R. 222 at 109–12.)

9 Nos. 17-1205/1221/1383, United States v. Watson, et al.

In all these situations, Defendants knew their drug-dealing victims would fear getting

arrested or injured, and Defendants exploited these fears to take drugs and money from them. This

was extortion through fear.

Defendants also ignore the main difference between robbery and extortion: consent.

Defendants point to no evidence that they used actual force to take the drugs and money, which

would be robbery, as opposed to consent induced by fear, which is extortion. See United States v.

Santos, 449 F.3d 93, 100–01 (2d Cir. 2006) (“[Defendant’s] admission that the plan was to take

property through the use of a badge actually bolsters his claim that he was not part of a plan that

involved taking property by ‘force.’”). Each victim, even if begrudgingly, allowed Defendants to

take drugs and money “with his consent.”

So under the plain language of 18 U.S.C. § 1951(b)(2), Defendants conspired to (1) obtain

someone else’s property (drugs and money); (2) with the victim’s consent (the drug dealers

begrudgingly complied); and (3) induced by fear (of getting arrested or hurt). Thus, we could end

our analysis here and affirm the indictment and convictions for extortion. But even if the

government were required to also establish a quid pro quo agreement—it did just that.

A.

The Indictment. Hansberry argues that the indictment failed to charge them with extortion.

But because Hansberry did not make this challenge before trial, the parties agree that we review

the indictment for plain error. And here, the indictment is “construed liberally in favor of its

sufficiency.” United States v. Bankston, 820 F.3d 215, 229 (6th Cir. 2016); see also Fed. R. Crim.

P. 12(c)(3).

10 Nos. 17-1205/1221/1383, United States v. Watson, et al.

An indictment must include “a plain, concise, and definite written statement of the essential

facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). This is not a high burden, which

the government can usually satisfy by quoting the words of the statute itself—and including facts

and circumstances that give a “general description” of the crime charged. United States v.

McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007). This combination meets the minimum notice

required so the defendant knows the charges against him and can prepare his plea or defense. See

Hamling v. United States, 418 U.S. 87, 117 (1974). Indeed, even when an indictment cites the

wrong statute or omits a relevant statute, we have still refused to render the indictment invalid.

United States v. West, 562 F.2d 375, 379 (6th Cir. 1977). This is because, “[u]nless the defendant

was misled and thereby prejudiced,” such errors cannot lead to dismissal of an indictment and

reversal of a conviction. Fed. R. Crim. P. 7(c)(2).

The relevant charge here is conspiracy to commit Hobbs Act extortion under 18 U.S.C.

§ 1951(b)(2). The government filed two indictments against Defendants, the first of which

included robbery charges. A year later, the government dropped the robbery charges and filed a

Superseding Indictment with new charges. These new charges included conspiracy to commit

extortion and six substantive counts of extortion. (See Superseding Indictment, R. 79 at 5, 7–10

(“COUNT ONE . . . 18 U.S.C. § 1951 – Conspiracy to Obtain Property by Extortion Under Color

of Official Right.”).)

Under the conspiracy charge in the Superseding Indictment, the government quoted

language directly from the statute, alleging that Defendants took drugs and money “by extortion,

that is to obtain property from others, with their consent, by the wrongful use of actual and

11 Nos. 17-1205/1221/1383, United States v. Watson, et al.

threatened force, violence, and fear, and under color of official right.” (Id. at 5 (emphasis added).)

This was the key change in the Superseding Indictment: that Defendants allegedly took the drugs

and money with the consent of the drug dealers—rather than taking the drugs and money against

their will. (Compare id., with Original Indictment, R. 1 at 7.)

The Superseding Indictment also included facts and circumstances that gave a general

description of the crime. The government alleged that Defendants conducted pretextual traffic

stops, home invasions, and arrests to coerce their victims into giving up their drugs and money.

(Superseding Indictment, R. 79 at 3–4.) Defendants accomplished this by “us[ing] their police

authority to extort” drug dealers. (Id. at 3.) Defendants would then fail to report the drugs or

money that they seized. Defendants instead “would divide amongst themselves the money,

property, and controlled substances obtained from their victims, and would sell the controlled

substances in order to share the proceeds of such sales.” (Id. at 4.)

Still, Defendants allege that these details were not enough because the indictment did not

list an explicit quid pro quo. But an “indictment must be read as a whole, accepting the factual

allegations as true, and construing those allegations in a practical sense with all the necessary

implications.” McAuliffe, 490 F.3d at 531 (citing United States v. Reed, 77 F.3d 139, 140 n.1 (6th

Cir. 1996) (en banc)). And we must read the indictment “liberally in favor of its sufficiency.” Id.

Here, the Superseding Indictment alleged that Defendants used their positions as police

officers “to coerce their victims into complying with their demands and to encourage their victims

to flee, leaving behind their controlled substances, money, or personal property.” (R. 79 at 3.) A

fair reading of this allegation implies that an agreement existed between Defendants and their

12 Nos. 17-1205/1221/1383, United States v. Watson, et al.

victims. Defendants did not simply steal drugs and money. Instead, the indictment alleged that

the victims agreed to give up their property so that they could escape arrest. And when read in

context with the allegation that Defendants took the drugs and money from the victims “with their

consent,” the indictment gave Defendants sufficient notice that the government was charging them

with conspiracy to commit extortion.

To be sure, the indictment could have provided more allegations detailing the conspiracy,

especially considering the volume of evidence introduced at trial. But “we are hard pressed to see

how anyone charged in the indictment would not know that he had been charged with the

conspiracy.” United States v. Rivera, 822 F.2d 60, at *2 (6th Cir. 1987) (unpublished table

decision). The indictment charged a specific crime under a specific statute. And the indictment

gave a “general description” of the crime charged: Defendants took drugs and money from drug

dealers—with their consent—by using fear or their position as police officers in violation of 18

U.S.C. § 1951. Thus, Defendants received enough notice that the government was charging them

B.

Evidence at Trial. Defendants also argue that the government failed to introduce any

evidence of a quid pro quo agreement between Defendants and their victims at trial. Instead,

according to Defendants, the government introduced only evidence of robbery. If this is true, one

of two things happened, either of which would require a new trial.

One theory is that, during the trial, the government changed the crime that Defendants were

charged with. This is called a “constructive amendment” or “variance.” See United States v.

13 Nos. 17-1205/1221/1383, United States v. Watson, et al.

Beasley, 583 F.3d 384, 389 (6th Cir. 2009). And it basically means that the government modified

the crime charged by presenting evidence of a different crime. Id. This can become a Sixth

Amendment violation because the defendant ends up “being tried for a different crime than [ ]he

had been indicted for.” Martin v. Kassulke, 970 F.2d 1539, 1542–43 (6th Cir. 1992). Applying

this theory here, the jury could not convict Defendants of robbery (even though there was evidence

of robbery) because Defendants were only charged with extortion.

The second theory takes the opposite approach: the jury could not convict Defendants of

extortion (even though Defendants were charged with extortion) because there was only evidence

of robbery. This is called a “sufficiency of the evidence” claim, which means that the government

stuck with the original crime (as charged) but failed to introduce sufficient evidence to prove the

elements of that crime during trial. See Valenzeno, 123 F.3d at 368. Under this theory, a

reasonable jury could not convict Defendants of extortion because it lacked the evidence to do so.

See Collins, 78 F.3d at 1029–32.

But these theories are really the same argument made different ways—i.e., the government

introduced only robbery evidence at trial. And so, no matter the theory used, both fail if the

government did in fact introduce evidence of extortion at trial, including evidence of a quid pro

quo agreement between Defendants and their victims. Following a 22-day trial, the district court

highlighted such evidence—and rejected Defendants’ arguments. (See Order Den. Acquittal,

R. 139 at 5–8.) We agree.

At trial, the government presented evidence of many quid pro quo agreements between

Defendants and their drug-dealing victims. For example, Gary Jackson, Nicholas Simmons, and

14 Nos. 17-1205/1221/1383, United States v. Watson, et al.

Lamont Calhoun all testified that they agreed to give Defendants drugs and money, and in

exchange, Defendants agreed to not arrest them or file charges. This kind of agreement is a

quintessential example of extortion by a public official. See, e.g., Evans, 504 U.S. at 270 (citing

Barts, 38 A.2d at 844).

Gary Jackson. Jackson was a drug dealer who wanted to work for Defendants. He got his

chance when he learned that a Mexican cartel had just sold $3 million worth of cocaine in Detroit.

And Jackson knew when the cartel was planning to drive its profits back to Mexico. So Jackson

contacted Watson and offered to give Defendants the date and location of the money’s departure

if he received a cut. Watson agreed with the plan—and told Jackson that he would receive

$300,000 “off the top.” (Trial Tr., R. 230 at 20.) Jackson tipped off Defendants and the police

stopped the truck and seized the money.

But Defendants did not pay Jackson as promised. Instead, Jackson’s contact told him that

Defendants “didn’t have a chance to get any money” before other police officers arrived at the

scene. (Id. at 29.) This did not make Jackson happy. Indeed, on the news, Jackson learned that

the police reported “that only $2.1 million was seized”—rather than the $3 million. (Id. at 29–30.)

In other words, Defendants took $900,000 “off the top” from the seizure and then lied to Jackson.

But eventually, Defendants set up a meeting with Jackson at a hotel to discuss what happened.

Jackson agreed to the meeting but decided to bring a secret recording device.

At the meeting, Defendants paid Jackson $250,000 with official police funds for his role

as an informant (rather than with money “off the top”). Hansberry then explained why he “had to

do it this way.” (Tr. of Hotel Recording, R. 165–2 at 13.) Hansberry needed to make sure that

15 Nos. 17-1205/1221/1383, United States v. Watson, et al.

Jackson wasn’t himself an undercover agent. But now, because Defendants knew Jackson was not

a spy, Hansberry would have no problem working with him. Jackson would keep tipping off

Defendants—and they would all get paid “off the top” from money seized. (See Trial Tr., R. 230

at 49.) According to Hansberry, they could become “millionaires doing this.” (Tr. of Hotel

Recording, R. 165–2 at 15.)

For this relationship to work, Hansberry told Jackson that he and Watson would be his “get

out of jail free card.” (Id. at 15.) Hansberry told Jackson to keep selling drugs, and if he “got

popped, I’ll get you. I’ll come get you.” (Id.) Hansberry reiterated this agreement: “If you work

for me you got my number. . . . You get popped, you out here making moves, you get popped, I’ll

come get you. . . . I’ll come get you off your case. You ain’t got to worry about that.” (Id. at 16.)

Said another way, Hansberry agreed to protect Jackson.

But Jackson was not just worried about himself. Jackson also did not want “his brothers”

getting arrested. (Id. at 20, 23 (“I just want this for the paying, I ain’t never cared about putting a

brother in jail.”).) So Hansberry agreed to protect them, too. If Jackson tipped off Defendants

about drugs or money for the taking—but it involved Jackson’s friends—Hansberry guaranteed,

“we ain’t going to lock them up.” (Id. at 22.) After the meeting, Jackson continued to work with

Defendants. Jackson even called Defendants his “super friends”—because “super friends come to

your rescue, like comic characters.” (Trial Tr., R. 230 at 61.) In sum, Jackson agreed to give

Defendants drugs and money, and in exchange, Defendants agreed to keep him and his friends out

of jail. This was a quid pro quo.

16 Nos. 17-1205/1221/1383, United States v. Watson, et al.

Nicholas Simmons. Simmons was also a drug dealer. And in 2011, Defendants raided

Simmons’ house “looking for guns and money, dope and money.” (Trial Tr., R.221 at 17, 24.)

During the raid, Defendants took Simmons into his basement and told him “to get in touch with

them if [he] didn’t want to go to jail.” (Id.) Defendants then took a duffle bag from Simmons

containing over $300,000 in drug money. Defendants also took cocaine and guns. Defendants left

without arresting or charging Simmons.

But Simmons eventually saw Hansberry again, this time at a topless bar. The two of them

talked—and Hansberry repeatedly asked Simmons “what do you want to do?” (Id. at 41–42.)

Simmons interpreted this as a request to become an informant, which he rejected. Instead,

Simmons asked Hansberry point blank, “hey, are you going to charge me or not?” (Id. at 43–44.)

But Hansberry insisted that “[h]e wanted to work something out.” (Id. at 44.) This led to another

conversation, where Hansberry wanted “[m]oney and dope” from Simmons. In return, Simmons

wanted Defendants to leave him alone. So Simmons and Hansberry agreed to a deal: Simmons

would leave five kilos of cocaine and $100,000 in a vacant house for Hansberry. Simmons got the

drugs and money, stashed it in a closet in a vacant house, and called Hansberry. He watched

nearby to confirm the pick-up. Afterwards, Hansberry told Simmons that “he got it and everything

was cool.” (Id. at 50.) Defendants then left Simmons alone as promised. Just as in the deal with

Jackson, Simmons agreed to give Defendants drugs and money and, in exchange, Defendants

agreed to keep him out of jail. This was a quid pro quo.

Lamont Calhoun. Calhoun was also a drug dealer—working with Watson for years to “rip-

off” drug dealers. Indeed, drug dealing was a family affair for Calhoun. So when his cousin was

17 Nos. 17-1205/1221/1383, United States v. Watson, et al.

arrested on drug charges, Calhoun reached out to Watson to see if he could help. But Watson’s

help came at a price: he was willing “to do things to help if [the cousin] did certain things.” (Trial

Tr., R. 227 at 88.) These “things” included giving Defendants $25,000 and finding “at least half

a kilo [of cocaine]” for Defendants. (Id.) In other words, Watson wanted Calhoun’s cousin to

give Defendants drugs and money “in order to make the charges go away.” (Id.)

Calhoun’s cousin agreed and paid Watson the $25,000. For the drugs, Watson suggested

a familiar tactic: Calhoun told his cousin to “put some drugs inside of a house, like one of

[Calhoun’s] rental properties.” (Id. at 89.) Once the cousin stashed the drugs, they notified Watson

and “let [the police] raid the house and . . . find the dope.” (Id. at 89–90.) And just like Jackson

and Simmons, Calhoun and his cousin made sure that “no one would be arrested.” (Id.) After

that, the cousin’s legal problems went away. And Calhoun continued to work with Watson. This

was a quid pro quo.

So even if the Hobbs Act required the government to introduce evidence of a quid pro quo

agreement between Defendants and their victims, the government did just that. Defendants took

drugs and money to provide protection for Jackson and his friends—and Defendants took drugs

and money to make charges “go away” for Simmons and Calhoun’s cousin. This is enough to

show that Defendants entered quid pro quo agreements with their victims. This evidence is even

more powerful because, for whatever reason, this conduct did not support any of the substantive

counts of extortion in the Superseding Indictment. This additional evidence provides an example

on how the jury could acquit Defendants on the substantive counts—but not on conspiracy.

18 Nos. 17-1205/1221/1383, United States v. Watson, et al.

C.

Defendants make one final “robbery versus extortion” argument. Defendants point to trial

testimony where various lay witnesses used the words “rip” or “robbery” to describe Defendants’

conduct (rather than use the word “extort”). Thus, according to Defendants, this word choice

suggests that Defendants committed robbery.

But as we’ve already described, the difference between “robbery” and “extortion” under

the Hobbs Act is academic. They are legal terms—not everyday terms. So when a lay witness

used one of these terms, such as “rip” or “robbery,” this usage does not necessarily mean robbery

to the exclusion of extortion.

Instead, terms often have “a separate, distinct and specialized meaning in the law different

from that present in the vernacular.” United States v. Ahmed, 472 F.3d 427, 434 (6th Cir. 2006)

(discussing terms such as “co-conspirators,” “drug trafficking,” and “falsity”). Witnesses often

use non-technical words in their testimony without implicating legal conclusions. Id. For

example, the use of “robbery” by a lay-witness is likely shorthand for the general idea of taking

someone’s property. See, e.g., Webster’s Third New Int’l Dictionary 1964 (1993) (“Rob indicates

the taking of another’s property either by such felonious methods as violence, intimidation, or

fraud, or, by extension, by any unjust procedure.”). And this common usage does not imply the

inclusion (or exclusion) of the victim’s consent. Indeed, the exact definitions of terms like

burglary, robbery, theft, and larceny “vary from jurisdiction to jurisdiction . . . and overlap to a

degree.” Bryan A. Garner, Garner’s Modern American Usage 120 (3d ed. 2009). This is why

“nonlawyers often consider the words synonymous.” Id. And the common usage of other terms

19 Nos. 17-1205/1221/1383, United States v. Watson, et al.

at trial—such as “extortion,” “bribery,” “rips,” “hitting a lick,” and other slang—just created

additional ways to say the same thing: the taking of someone’s property.

In sum, the general use of the words “rob,” “rip,” or “robbery” by lay witnesses cannot

change the crime charged from extortion to robbery. As a result, there was no amendment or

variance to the charges in the Superseding Indictment. And there was enough evidence to convict

Defendants of conspiracy to commit extortion.

IV.

Brady/Giglio Violation. Defendants raise various other issues with their trial and

sentences. As we already explained, Gary Jackson testified that Defendants took $900,000 “off

the top” from a Mexican cartel bust. During cross-examination, Defendants attacked Jackson and

his credibility. One attempt to impeach Jackson relied on a recording of a phone call between

Jackson’s phone and another drug dealer. Defendants wanted to use the recording to show that

Jackson knew Defendants did not steal the missing $900,000. Instead, Defendants argue that, in

the recording, Jackson admits that “Old School and Little” took the money. But Defendants ran

into a problem when asking Jackson about the recording:

Q: You recognize the voices on there? A: No, not really. Q: You don’t? A: No. Q: It’s not you? A: Turn it up a little bit. Q: Sorry? A: Turn it up a little bit. 20 Nos. 17-1205/1221/1383, United States v. Watson, et al.

Q: Okay . . . Start it over. . . . You recognize the voice of the person you’re speaking to as Frederick Tucker? A: Okay. Q: Yes? A: That’s Fred Tucker, yes. Q: That is? A: Yes. Q: And you, correct? A: I really couldn’t tell honestly if that was me, sir. I’m just being honest.

(Trial Tr., R. 230 at 118.)

When Jackson testified that he could not recognize his own voice on the recording, the

district court excluded the evidence for lack of authentication. But Defendants claim that Jackson

was lying on the witness stand—and the government knew it. Defendants thus argue that the

government suppressed evidence favorable to them in violation of Brady v. Maryland, 373 U.S.

83 (1963). Defendants argue that the government “failed to correct false testimony that [it] knew,

or should have known, to be false.” Rosencrantz v. Lafler, 568 F.3d 577, 583 (6th Cir. 2009). To

prove this type of claim, Defendants must show that “(1) the statement was actually false; (2) the

statement was material; and (3) the prosecution knew it was false.” Id. at 583–84.

Defendants cannot meet this burden. To begin with, we don’t know whether Jackson

actually lied. For example, if Jackson said he never had a conversation with Tucker—or that he

didn’t even know Tucker—we would know he lied. But here, Jackson testified that he “really

couldn’t tell honestly if that was me” on the recording. We have no way of knowing whether, in

that moment, Jackson could or could not recognize his own voice. This is especially true because

21 Nos. 17-1205/1221/1383, United States v. Watson, et al.

Jackson had trouble hearing the recording: he asked Defendants’ counsel twice to “turn it up a

little bit.” Thus, Jackson’s testimony focused on whether he could hear and recognize the voice

on the recording (which could be true or false)—not whether the voice on the recording was in

fact his (which we know is true). Indeed, counsel for Defendants seemed to concede this point by

not questioning Jackson further about the conversation, instead responding, “Fair enough.” In

other words, “it is not clear that [Jackson] testified falsely on [this] point, and more to the point[,]

it is far from clear the government knew otherwise.” See Crenshaw v. Steward, 502 F. App’x 491,

495 (6th Cir. 2012). This defeats Defendants’ claim.

Still, even if Jackson lied (and the government knew it), the recording would not have

changed anything. Contrary to Defendants’ argument, the recording does not show that “Old

School and Little” (rather than Defendants) were responsible for the $900,000 theft. This

admission is simply not in the recording. As a result, even if the district court had admitted the

recording, Defendants cannot satisfy the materiality requirement for a Brady/Giglio claim: that

“there is any reasonable likelihood that the false testimony could have affected the judgment of

the jury.” Rosencrantz, 568 F.3d at 584 (quoting United States v. Agurs, 427 U.S. 97, 104 (1976)).

We reject Defendants’ argument.

V.

Defendants’ next argument takes aim at statements the district court made during trial.

According to Defendants, the district court made misstatements about reasonable doubt, the burden

of proof, and whether the Superseding Indictment charged Defendants with robbery. These

misstatements allegedly confused and misled the jury. Defendants also complain that the jury

22 Nos. 17-1205/1221/1383, United States v. Watson, et al.

instructions were wrong, which further confused the jury. So when the jury began its deliberations,

Defendants argue that it didn’t know the correct standards to follow.

But because Defendants did not object at trial, they admit the plain-error standard of review

applies here. “Plain error ‘requires a finding that, taken as a whole, the jury instructions were so

clearly erroneous as to likely produce a grave miscarriage of justice.’” United States v. Mahbub,

818 F.3d 213, 229 (6th Cir. 2016) (quoting United States v. Semrau, 693 F.3d 510, 528 (6th Cir.

2012)). Defendants cannot meet this high burden. Indeed, even if the district court’s statements

during trial were capable of prejudicing Defendants, the district court fixed any problems when it

made subsequent clarifying statements and properly instructed the jury before deliberations. See

United States v. Calandrella, 605 F.2d 236, 254–55 (6th Cir. 1979) (dismissing the district court’s

“concededly inadvertent remark” because “the court’s curative instruction was adequate to

eliminate any possible prejudice and reject the defendants’ claim that the jury was likely misled”);

see also People of Territory of Guam v. Ignacio, 852 F.2d 459, 461 (9th Cir. 1988) (finding no

reversible error where “the trial judge used the correct instruction at the end of trial”).

The misstatements allegedly began towards the end of jury selection, when the district

court discussed the concept of reasonable doubt and the burden of proof. The district court made

several statements that Defendants characterize as “shifting” or “lowering” these standards. For

example, the district court explained that “the issue of reasonable doubt is significant and

substantial and it means the government has to . . . submit proof beyond just 51 to 49 [percent][,]

but beyond a reasonable doubt.” (Voir Dire Tr., R. 216 at 180.) The district court continued: “on

the other hand, there’s not an obligation to eliminate all doubt.” Defendants read these statements

23 Nos. 17-1205/1221/1383, United States v. Watson, et al.

as allowing the jury to return a guilty verdict even if it had reasonable doubts—and that the

statements improperly “encouraged the jury to think [of reasonable doubt] in terms of a

mathematical formulation.”

Defendants also alleged that the district court made misstatements when it discussed its

own role during trial. When telling the jury to focus on the lawyers, and not the judge, the district

court explained, “it’s really up to [the lawyers] to do what they need to do to prove or disprove the

charges.” (Trial Tr., R. 217 at 20 (emphasis added).) And later, the district court made another

comment to the jury: “we are fairly deep into the government’s case now. I don’t know how deep,

but we’ve heard a lot of witnesses and you’re probably beginning to see a pattern of evidence.”

(Trial Tr., R. 220 at 198–99 (emphasis added).) Defendants argue that these comments improperly

shifted the burden of proof from the government (who had to prove its case) to Defendants (who

were not required disprove the government’s case).

But the district court qualified these statements—and explained that it would give the jury

detailed instructions to follow at the end of trial. (See Trial Tr., R. 216 at 179–80 (“Reasonable

doubt I’ll give you really specific instructions on, okay? And I may not have explained reasonable

doubt as clearly as I should have because I didn’t give you the instruction.”); R. 221 at 5 (“And

when you were leaving I said a couple of things . . . [but] [t]here’s no pattern that I know of being

developed. . . . And most importantly, what I say is not evidence. And what you’re going to do

when I instruct you is go back in the jury room and deliberate on the evidence and make your

decision on the verdicts in light of that.”).)

24 Nos. 17-1205/1221/1383, United States v. Watson, et al.

And that’s exactly what happened. At the close of trial, the district court instructed the

jury on both reasonable doubt and the burden of proof. For both, the district court read, word-for-

word, our approved pattern jury instructions. (Compare R. 235 at 11–12, with Pattern Crim. Jury

Instr. 6th Cir. 1.03(4)–(5) (reasonable doubt); and compare R. 235 at 11, with Pattern Crim. Jury

Instr. 6th Cir. 1.03(1)–(3) (burden of proof).) Defendants admit these are good instructions. So

when the jury began its deliberations, it knew the correct standards to follow because these

instructions fixed any earlier misstatements or lingering confusion. Indeed, the jury took these

correct, written instructions with them into deliberations—as opposed to any passing remarks

made weeks earlier.

The district court then moved to specific jury instructions for each count in the Superseding

Indictment. This is when Defendants claim the district court made another mistake. When

addressing conspiracy to commit extortion, the district court explained:

What the government must prove is that there was a mutual understanding, either spoken or unspoken, between two or more people to cooperate with each other to extort money and property from other persons. This is essential. . . . One more point about the agreement. The indictment here accuses the defendants of conspiring to commit several acts of robbery and extortion. The government doesn’t have to prove that the defendants agreed to commit all these crimes, but the government must prove an agreement to commit at least one of them for you to return a guilty verdict on the conspiracy charge.

(Jury Instructions, R. 235 at 20 (emphasis added).) But this statement was not entirely accurate.

As we know, the Superseding Indictment charged Defendants with just extortion—not “robbery

and extortion.” The district court, however, did not end its instructions here.

25 Nos. 17-1205/1221/1383, United States v. Watson, et al.

When we review jury instructions, we must evaluate the instructions “not in isolation but

in the context of the entire charge.” Jones v. United States, 527 U.S. 373, 391 (1999); 35B C.J.S.

Fed. Civ. Pro. § 1012 (“Instructions must be regarded as a series and considered as a whole and

not in their individual parts.”); Cox v. Treadway, 75 F.3d 230, 237 (6th Cir. 1996) (same). And

when the jury is provided with instructions that “mirror or track” our own pattern instructions, we

generally do not find those instructions misleading or erroneous. See, e.g., Semrau, 693 F.3d at

528 (quoting United States v. Damra, 621 F.3d 474, 499–500 (6th Cir. 2010)).

Here, the district court continued to explain conspiracy and extortion using our pattern jury

instructions. (See Jury Instructions, R. 235 at 21 (following Pattern Crim. Jury Instr. 6th Cir.

3.03(2)); see also Mahbub, 818 F.3d at 229–30 (approving this instruction).) And when it came

to the underlying substantive counts, the district court explained extortion again—including the

different ways the government could prove extortion under the Hobbs Act. This included one

instruction for extortion using threatened force, violence, or fear (R. 235 at 25 (following Pattern

Crim. Jury Instr. 6th Cir. 17.01)); and a separate instruction for extortion by a public official. (Id.

at 25–26 (following Pattern Crim. Jury Instr. 6th Cir. 17.02).) Indeed, under the latter, the district

court even explained the quid pro quo requirement: “If a public official accepts or demands

property in return for promised performance or non-performance of an official act, then the official

is guilty of extortion.” (Id.)

So while the district court did use the word “robbery” in one stray instance, the instructions

otherwise only describe extortion. The district court explained the individual elements of extortion

and the different ways Defendants could commit extortion under the Hobbs Act. In contrast, there

26 Nos. 17-1205/1221/1383, United States v. Watson, et al.

is no other reference or mention of “robbery” in the instructions. As a result, there is no clear error

when we review and read the entire instructions. We affirm the guilty verdicts.

VI.

Sentencing. The district court then moved to sentencing, holding separate hearings for

Hansberry and Watson. The district court sentenced Hansberry to 155 months in prison. In

contrast, the district court sentenced Watson to only 108 months, much less than Watson’s

recommended Guidelines range of 121 to 151 months.

The major issue at sentencing was Defendants’ “loss amount” under the Sentencing

Guidelines and whether the district court should include the $900,000 from the Mexican seizure.

See U.S.S.G. § 2B1.1(b)(1)(H). The district court ultimately found that it should count the

$900,000 and applied a 14-level enhancement to both Hansberry and Watson.

“We review a district court’s loss calculations under the Guidelines for clear error.” United

States v. Gray, 521 F.3d 514, 542 (6th Cir. 2008). “In challenging the court’s loss calculation, [a

defendant] must carry the heavy burden of persuading this Court that the evaluation of the loss

was not only inaccurate, but outside the realm of permissible calculations.” Id. at 543 (quoting

United States v. Hamilton, 263 F.3d 645, 654 (6th Cir. 2001)). Hansberry cannot meet this heavy

burden. Indeed, he provides only a cursory challenge on the loss-amount determination. (See

Hansberry’s Br. at 68–70 (attacking Jackson’s credibility).)

Watson, however, makes a different argument: he believes the district court failed to make

an independent determination of whether this loss amount should apply to him. (See Watson’s Br.

at 33 (relying on United States v. Corsey, 723 F.3d 366, 377 (2d Cir. 2013).) In other words,

27 Nos. 17-1205/1221/1383, United States v. Watson, et al.

Watson thinks the district court failed to distinguish between his culpability and Hansberry’s

culpability in the $900,000 theft. And to be sure, the government admits that “the district court’s

reasoning could be clearer.” (Gov’t Br. at 91.)

The two sentencing hearings occurred back-to-back. During Hansberry’s sentencing, the

district court discussed the $900,000 and whether it should count towards Hansberry’s loss

amount. Watson’s counsel, recognizing the overlap on the issue, asked the district court “to be

heard on” the issue before the district court sentenced Hansberry. (Sentencing Tr., R. 178 at 28.)

But the district court denied this request, explaining, “I’m going to defer that because . . . I might

make a different ruling in . . . different cases, frankly.” (Id.) For Hansberry, the district court

counted the $900,000. In doing so, the district court explained the powerful impact of Jackson’s

secret recording: “I remember this very vividly, the tape that Mr. Jackson made of Mr. Hansberry

that corroborated what had happened and what was going to happen in the future.” (Id. at 29.)

Watson’s sentencing hearing came next. The government and Watson argued, at length,

about whether the district court should count the $900,000 towards Watson. Watson’s argument,

like Hansberry’s, focused mainly on attacking Jackson’s credibility. That was, until the district

court changed topics: “Let me engage something a little broader here. My overall sense, based

on . . . the evidence at the trial, was that . . . Watson was—he was not the . . . mastermind, he was

not the leader.” (Sentencing Tr., R. 179 at 16.) This led to a specific question. If the district court

determined that the $900,000 seizure occurred, “is there any way that the relationship or the facts

of the seizure . . . would get Mr. Watson out of the application of this particular enhancement?”

(Id.) Put differently, the district court was concerned that Watson’s culpability in the $900,000

28 Nos. 17-1205/1221/1383, United States v. Watson, et al.

theft was less than Hansberry’s. This question shows that the district court considered the very

issue that Watson now claims it ignored.

Unsurprisingly, both sides had different takes. Watson argued that no testimony implicated

him with the theft. But the government reminded the district court that Watson was Jackson’s

original contact for the Mexican cartel theft. (See id. at 57 (“[I]t was Mr. Watson and not

Hansberry who first told Mr. Jackson he’d get $300,000 off the top of that $3 million seizure[.]”).)

And the government pointed back to Jackson’s secret recording, where Watson admitted that he

first told Jackson that Defendants would protect him.

Ultimately, the district court ended up somewhere in the middle. First, it recognized that

Watson was present when Jackson made his secret recording—and that he was involved with the

theft. But at the same time, the district court “didn’t believe Watson found himself in the same

position in this conspiracy that Hansberry did.” (Id. at 39.) And that Watson’s involvement “was

at a lower level . . . probably less involved than Mr. Hansberry.” (Id. at 62 (detailing the

“compelling testimony” from the FBI agent, who explained that Watson took less money during

the conspiracy).) As a result, the district court applied the 14-point enhancement for the $900,000

theft. But Watson also received a downward variance for his reduced culpability, lowering his

possible sentence from 121 to 151 months to 97 to 121 months.

Still, although the district court imposed a shorter sentence, it explained that Watson’s

variance “in no way is to undercut the validity and strength of the evidence lodged by the

government against Mr. Watson because I do believe that the evidence on [conspiracy] proved

beyond a reasonable doubt guilt on that count.” (Id. at 63.) And the district court explained that

29 Nos. 17-1205/1221/1383, United States v. Watson, et al.

the “balance of the evidence shows” that the $900,000 applied to Watson. Said another way,

although Watson’s culpability was less—it was not zero.

In sum, the district court did exactly what Watson claims it failed to do: make an

independent determination of the loss amount as it applied to Watson. Indeed, Watson received a

downward variance specifically because the district court found him less culpable than Hansberry

in the $900,000 seizure. As a result, the district court did not commit error, much less clear error,

in calculating Watson’s loss amount.

Double Counting. The district court also applied additional enhancements for Hansberry.

Hansberry received a four-level enhancement for being a public official, under U.S.S.G.

§ 2C1.1(b)(3), and another two-level enhancement for being a manager or supervisor in the

criminal activity, under U.S.S.G. § 3B1.1(c). Under the latter enhancement, the district court

found Hansberry to be “at the top of the chain” of the conspiracy. Hansberry claims that these

enhancements amount to “double counting.”

We review a district court’s sentencing determination “under a deferential abuse-of-

discretion standard for reasonableness.” United States v. Taylor, 800 F.3d 701, 712 (6th Cir. 2015).

“Double counting occurs when precisely the same aspect of the defendant’s conduct factors into

his sentence in two separate ways.” United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010)

(quoting United States v. Moon, 513 F.3d 527, 542 (6th Cir. 2008)) (brackets omitted). “But no

double counting occurs if the defendant is punished for distinct aspects of his conduct.” Id.

Here, the district court applied two distinct enhancements. Hansberry received a four-level

enhancement for being a public official, under U.S.S.G. § 2C1.1(b)(3). And he received a separate

30 Nos. 17-1205/1221/1383, United States v. Watson, et al.

two-level enhancement for being a manager or supervisor in the criminal activity, under U.S.S.G.

§ 3B1.1(c). These enhancements punish “different aspects of his conduct.” The first enhancement

is for Hansberry’s role as a cop—and the second enhancement is because Hansberry was a leader

in the conspiracy. So Hansberry could have received the leadership enhancement even if he

weren’t a cop—and vice versa. See United States v. Delano, 99 F.3d 402, at *1 (2d Cir. 1995)

(unpublished table decision) (explaining that no “double count[ing]” occurred under U.S.S.G. §§

2C1.1(b) and 3B1.1(c) because “these sections concern different aspects of . . . criminal conduct”).

This is not double counting.2 The district court did not abuse its discretion in applying the

enhancements.

Different Sentences. Finally, Hansberry complains that his sentence was unreasonable

because he received a harsher sentence than Watson and the other co-defendants. “For a sentence

to be substantively reasonable, it must be proportionate to the seriousness of the circumstances of

the offense and offender, and sufficient but not greater than necessary, to comply with the purpose

of [18 U.S.C.] § 3553(a).” Taylor, 800 F.3d at 713 (quoting United States v. Vowell, 516 F.3d

503, 512 (6th Cir. 2008)). We “review all challenges to the substantive reasonableness of a

sentence for abuse of discretion.” Id. (quoting United States v. Richards, 593 F. App’x 500, 504

(6th Cir. 2014)). And we presume a sentence is reasonable when, like here, it is within the

Guidelines range. United States v. Vowell, 516 F.3d 503, 509 (6th Cir. 2008).

2 The cases Hansberry relies on, both of which declined to find any double counting, do not require a different result. See United States v. Partida, 385 F.3d 546, 567 (5th Cir. 2004); United States v. Powers, 168 F.3d 741, 751 (5th Cir. 1999). 31 Nos. 17-1205/1221/1383, United States v. Watson, et al.

To begin with, this objection stems from 18 U.S.C. § 3553(a)(6), which instructs courts “to

avoid unwarranted sentence disparities among defendants with similar records who have been

found guilty of similar conduct.” But when making these comparisons, “this factor concerns

national disparities between defendants with similar criminal histories convicted of similar

criminal conduct—not disparities between codefendants.” United States v. Conaster, 514 F.3d

508, 521 (6th Cir. 2008). Thus, Hansberry’s argument about his co-defendants fails.

Regardless, Hansberry was not similarly situated with the other defendants. See, e.g.,

United States v. Hunter, 540 F. App’x 498, 500 (6th Cir. 2013). For example, Hansberry was a

sergeant and received an enhancement for his leadership role—while Watson was not and did not.

Hansberry had a different Guidelines range with a different level of culpability, warranting a

different sentence. As a result, the district court did not impose a substantively unreasonable

sentence. We affirm the sentences.

* * *

We affirm the district court and the Defendants’ sentences in all respects.