NOT RECOMMENDED FOR PUBLICATION File Name: 23a0171n.06
No. 22-5639
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 18, 2023 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF DEANGELO DEVON GRANT, ) KENTUCKY ) Defendant-Appellant. ) OPINION )
Before: SUTTON, Chief Judge; BOGGS and READLER, Circuit Judges.
PER CURIAM. Deangelo Devon Grant appeals his 264-month sentence for
methamphetamine offenses. As set forth below, we affirm Grant’s sentence.
Law enforcement received information about a UPS package containing narcotics and
observed Grant retrieve the package from a mailroom and place it in the trunk of a vehicle.
Following a traffic stop and a positive canine alert, law enforcement searched the vehicle and
discovered approximately 43 pounds of a methamphetamine mixture in a box in the trunk.
Laboratory testing of the methamphetamine showed that it contained 8,959 grams of actual
methamphetamine.
A federal grand jury returned an indictment charging Grant with conspiracy to distribute
500 grams or more of a mixture or substance containing a detectable amount of methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession with intent to distribute 500 grams
or more of a mixture or substance containing a detectable amount of methamphetamine, in No. 22-5639, United States v. Grant
violation of 21 U.S.C. § 841(a)(1). After the district court denied his motion to suppress evidence,
Grant pleaded guilty to both counts.
At sentencing, the district court calculated Grant’s guidelines range as 235 to 293 months
of imprisonment based on a total offense level of 35 and a criminal-history category of IV. After
considering the sentencing factors under 18 U.S.C. § 3553(a), the district court sentenced Grant to
the middle of that range—264 months of imprisonment—followed by five years of supervised
release.
This timely appeal followed. Grant raises two issues on appeal: (1) whether the district
court imposed a procedurally unreasonable sentence by applying the incorrect base offense level
in calculating his guidelines range; and (2) whether the district court imposed a substantively
unreasonable sentence by failing to properly weigh and consider the § 3553(a) factors.
Grant first argues that the district court procedurally erred in applying a base offense level
of 38 for an offense involving 4.5 kilograms or more of actual methamphetamine under U.S.S.G.
§ 2D1.1(c)(1) rather than a base offense level of 36 for an offense involving at least 15 kilograms
but less than 45 kilograms of methamphetamine under U.S.S.G. § 2D1.1(c)(2) based on the entire
weight of the mixture or substance. Because Grant did not raise this objection to the guidelines
calculation before the district court, even when afforded the opportunity to object to his sentence
at the conclusion of the sentencing hearing, we review for plain error. See United States v. Vonner,
516 F.3d 382, 385-86 (6th Cir. 2008) (en banc); United States v. Bostic, 371 F.3d 865, 872-73 (6th
Cir. 2004). Grant must “show (1) error (2) that ‘was obvious or clear,’ (3) that ‘affected [his]
substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial
proceedings.’” Vonner, 516 F.3d at 386 (quoting United States v. Gardiner, 463 F.3d 445, 459
(6th Cir. 2006)).
-2- No. 22-5639, United States v. Grant
The drug-quantity table found in U.S.S.G. § 2D1.1(c) distinguishes between
“methamphetamine,” which “refers to the entire weight of any mixture or substance containing a
detectable amount of” methamphetamine, and “methamphetamine (actual),” which “refer[s] to the
weight of the controlled substance, itself, contained in the mixture or substance.” U.S.S.G.
§ 2D1.1(c) n. (A)-(B); see United States v. Johnson, 812 F. App’x 329, 331-32 (6th Cir. 2020). In
the case of a mixture or substance containing methamphetamine, the district court is directed to
“use the offense level determined by the entire weight of the mixture or substance, or the offense
level determined by the weight of the . . . methamphetamine (actual), whichever is greater.” USSG
§ 2D1.1(c) n. (B) (emphasis added).
Grant contends that the district court should have applied a base offense level of 36 because
the entire weight of the mixture or substance found in the vehicle was approximately 43 pounds
or 19 kilograms. But laboratory testing showed that the mixture or substance contained 8.9
kilograms of actual methamphetamine, corresponding to a higher base offense level of 38. See
USSG § 2D1.1(c)(1) (“4.5 KG or more of Methamphetamine . . . .”). The district court therefore
did not err, let alone plainly err, in applying the higher base offense level.
Grant further argues that his sentencing based on the weight of the actual
methamphetamine rather than the entire weight of the mixture or substance operated as an
impermissible constructive amendment of the indictment, which charged offenses involving “500
grams or more of a mixture or substance containing a detectable amount of methamphetamine.”
But the indictment’s language limited the statutory penalties, not the base offense level under the
sentencing guidelines. See Johnson, 812 F. App’x at 333. In any event, a constructive amendment
of the indictment occurs “when the terms of an indictment are in effect altered by the presentation
of evidence and jury instructions which so modify essential elements of the offense charged that
-3- No. 22-5639, United States v. Grant
there is a substantial likelihood that the defendant may have been convicted of an offense other
than the one charged in the indictment.” United States v. Smith, 320 F.3d 647, 656 (6th Cir. 2003).
But here Grant pleaded guilty to the offenses charged in the indictment.
Grant also challenges the substantive reasonableness of his sentence. We review the
substantive reasonableness of Grant’s sentence under a deferential abuse-of-discretion standard.
See Gall v. United States, 552 U.S. 38, 51 (2007). “The essence of a substantive-reasonableness
claim” made by a criminal defendant “is whether the length of the sentence is ‘greater than
necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v.
Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). “Simply put, a defendant’s sentence is
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0171n.06
No. 22-5639
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 18, 2023 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF DEANGELO DEVON GRANT, ) KENTUCKY ) Defendant-Appellant. ) OPINION )
Before: SUTTON, Chief Judge; BOGGS and READLER, Circuit Judges.
PER CURIAM. Deangelo Devon Grant appeals his 264-month sentence for
methamphetamine offenses. As set forth below, we affirm Grant’s sentence.
Law enforcement received information about a UPS package containing narcotics and
observed Grant retrieve the package from a mailroom and place it in the trunk of a vehicle.
Following a traffic stop and a positive canine alert, law enforcement searched the vehicle and
discovered approximately 43 pounds of a methamphetamine mixture in a box in the trunk.
Laboratory testing of the methamphetamine showed that it contained 8,959 grams of actual
methamphetamine.
A federal grand jury returned an indictment charging Grant with conspiracy to distribute
500 grams or more of a mixture or substance containing a detectable amount of methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession with intent to distribute 500 grams
or more of a mixture or substance containing a detectable amount of methamphetamine, in No. 22-5639, United States v. Grant
violation of 21 U.S.C. § 841(a)(1). After the district court denied his motion to suppress evidence,
Grant pleaded guilty to both counts.
At sentencing, the district court calculated Grant’s guidelines range as 235 to 293 months
of imprisonment based on a total offense level of 35 and a criminal-history category of IV. After
considering the sentencing factors under 18 U.S.C. § 3553(a), the district court sentenced Grant to
the middle of that range—264 months of imprisonment—followed by five years of supervised
release.
This timely appeal followed. Grant raises two issues on appeal: (1) whether the district
court imposed a procedurally unreasonable sentence by applying the incorrect base offense level
in calculating his guidelines range; and (2) whether the district court imposed a substantively
unreasonable sentence by failing to properly weigh and consider the § 3553(a) factors.
Grant first argues that the district court procedurally erred in applying a base offense level
of 38 for an offense involving 4.5 kilograms or more of actual methamphetamine under U.S.S.G.
§ 2D1.1(c)(1) rather than a base offense level of 36 for an offense involving at least 15 kilograms
but less than 45 kilograms of methamphetamine under U.S.S.G. § 2D1.1(c)(2) based on the entire
weight of the mixture or substance. Because Grant did not raise this objection to the guidelines
calculation before the district court, even when afforded the opportunity to object to his sentence
at the conclusion of the sentencing hearing, we review for plain error. See United States v. Vonner,
516 F.3d 382, 385-86 (6th Cir. 2008) (en banc); United States v. Bostic, 371 F.3d 865, 872-73 (6th
Cir. 2004). Grant must “show (1) error (2) that ‘was obvious or clear,’ (3) that ‘affected [his]
substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial
proceedings.’” Vonner, 516 F.3d at 386 (quoting United States v. Gardiner, 463 F.3d 445, 459
(6th Cir. 2006)).
-2- No. 22-5639, United States v. Grant
The drug-quantity table found in U.S.S.G. § 2D1.1(c) distinguishes between
“methamphetamine,” which “refers to the entire weight of any mixture or substance containing a
detectable amount of” methamphetamine, and “methamphetamine (actual),” which “refer[s] to the
weight of the controlled substance, itself, contained in the mixture or substance.” U.S.S.G.
§ 2D1.1(c) n. (A)-(B); see United States v. Johnson, 812 F. App’x 329, 331-32 (6th Cir. 2020). In
the case of a mixture or substance containing methamphetamine, the district court is directed to
“use the offense level determined by the entire weight of the mixture or substance, or the offense
level determined by the weight of the . . . methamphetamine (actual), whichever is greater.” USSG
§ 2D1.1(c) n. (B) (emphasis added).
Grant contends that the district court should have applied a base offense level of 36 because
the entire weight of the mixture or substance found in the vehicle was approximately 43 pounds
or 19 kilograms. But laboratory testing showed that the mixture or substance contained 8.9
kilograms of actual methamphetamine, corresponding to a higher base offense level of 38. See
USSG § 2D1.1(c)(1) (“4.5 KG or more of Methamphetamine . . . .”). The district court therefore
did not err, let alone plainly err, in applying the higher base offense level.
Grant further argues that his sentencing based on the weight of the actual
methamphetamine rather than the entire weight of the mixture or substance operated as an
impermissible constructive amendment of the indictment, which charged offenses involving “500
grams or more of a mixture or substance containing a detectable amount of methamphetamine.”
But the indictment’s language limited the statutory penalties, not the base offense level under the
sentencing guidelines. See Johnson, 812 F. App’x at 333. In any event, a constructive amendment
of the indictment occurs “when the terms of an indictment are in effect altered by the presentation
of evidence and jury instructions which so modify essential elements of the offense charged that
-3- No. 22-5639, United States v. Grant
there is a substantial likelihood that the defendant may have been convicted of an offense other
than the one charged in the indictment.” United States v. Smith, 320 F.3d 647, 656 (6th Cir. 2003).
But here Grant pleaded guilty to the offenses charged in the indictment.
Grant also challenges the substantive reasonableness of his sentence. We review the
substantive reasonableness of Grant’s sentence under a deferential abuse-of-discretion standard.
See Gall v. United States, 552 U.S. 38, 51 (2007). “The essence of a substantive-reasonableness
claim” made by a criminal defendant “is whether the length of the sentence is ‘greater than
necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v.
Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). “Simply put, a defendant’s sentence is
substantively unreasonable if it is too long.” United States v. Lee, 974 F.3d 670, 676 (6th Cir.
2020). “One way to gauge the substantive reasonableness of a sentence is to ask whether ‘the
court placed too much weight on some of the § 3553(a) factors and too little on others’ in reaching
its sentencing decision.” United States v. Perez-Rodriguez, 960 F.3d 748, 753-54 (6th Cir. 2020)
(quoting United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019)). We afford a rebuttable
presumption of substantive reasonableness to a sentence within the properly calculated guidelines
range. Vonner, 516 F.3d at 389-90.
Grant has not overcome that presumption. He asserts that the district court failed to give
sufficient weight to his history and characteristics, resulting in a sentence that was unduly punitive.
Grant specifically argues that the district court failed to give sufficient weight to the age of his
prior convictions. Although he had older robbery convictions for which he served a lengthy prison
sentence, Grant had more recent convictions for drug and firearm offenses. Grant also argues that
the district court gave insufficient weight to his “highly destabilized childhood.” During his
allocution, Grant stated: “I was never really taught how to actually be a law-abiding citizen in
-4- No. 22-5639, United States v. Grant
society . . . . I was always taught, you know, this is the way to do it, this is the way you live, so
that’s what I did.” R. 89, Sentencing Tr., PageID 433. The district court addressed Grant’s
comments about his upbringing:
And in this case, I will be recommending that Mr. Grant participate in programs that would assist him when he is released. And the BOP now has a number of programs that will be beneficial in terms of some of the problems that you’ve identified. In terms of when you’re raised a certain way, you tend to act the way that you were raised, and the way you’ve known most of your life, but it doesn’t have to be that way; it doesn’t have to continue. And there are a number of very good programs that are available through the BOP . . . .
Id. at 435. The district court ultimately recommended that Grant participate in any available job
skills and vocational-training programs.
The district court considered Grant’s history and characteristics as well as other relevant
§ 3553(a) factors, including the need for the sentence to reflect the seriousness of his offenses,
afford adequate deterrence, protect the public, provide vocational training, and avoid unwarranted
sentence disparities. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(D), (a)(6). The district court properly
balanced these factors and imposed a substantively reasonable sentence in the middle of the
applicable guidelines range.
For these reasons, we AFFIRM Grant’s 264-month sentence.
-5-