NOT RECOMMENDED FOR PUBLICATION File Name: 23a0280n.06
No. 22-3594
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jun 16, 2023 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ON APPEAL FROM THE ) UNITED STATES DISTRICT ) v. COURT FOR THE NORTHERN ) DISTRICT OF OHIO ) DEVONTE L. FELLOWS, ) Defendant-Appellant. OPINION ) )
Before: GILMAN, BUSH, and READLER, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Devonte Fellows sold Austin Thompson fentanyl on three
separate occasions. The third transaction was the last, for afterwards Thompson died. A grand
jury indicted Fellows for distributing fentanyl, in violation of 21 U.S.C. § 841(a)(1), including an
enhanced death-resulting penalty provision under 21 U.S.C. § 841(b)(1)(C). After a jury found
him guilty, Fellows appealed, challenging the sufficiency of the evidence, the jury instructions,
and the procedural and substantive reasonableness of his sentence. Because the district court
correctly denied Fellows’ motion for a judgment of acquittal based on the insufficiency of the
evidence and reasonably sentenced him, we AFFIRM.
I.
Fellows and Thompson were former high-school classmates. Their reunion through the
drug trade ended in tragedy.
Text messages tell much of the story. On April 24, 2019, Fellows exchanged texts with
Thompson, offering to sell him 0.4 grams of a mixture that purported to be heroin and fentanyl. No. 22-3594, United States v. Fellows
After Fellows gave Thompson his address, Thompson confirmed that he planned to leave soon to
meet Fellows and make the purchase. The buy apparently proceeded as planned.
The next day, Thompson texted Fellows, asking for another 0.4 grams of the mixture.
Thompson said that he could meet around 9:00 p.m. that night, which was around the time they
had met the previous night. Fellows agreed. Again, the drug purchase seemed to go smoothly.
The following day, April 26, 2019, Thompson texted Fellows once again to buy more of
the mixture of heroin and fentanyl. Thompson initially asked for around half a gram of the
mixture—a similar quantity to his previous purchases—but Fellows suggested that Thompson
instead purchase a full gram of the mixture to “save a couple trips [sic].” After some haggling
over the price, Thompson texted to say that he would meet Fellows but had to stop at an ATM
first. Fellows then asked Thompson to delete the text messages they had just exchanged. About
an hour later, Fellows told Thompson that he was on his way to meet for the transaction.
Thompson then asked if Fellows had brought a scale to weigh the drugs and said that he would be
there soon.
A few hours after returning home from this third transaction, Thompson texted Fellows,
asking if the mixture he just purchased was different from his earlier buys because it “[d]on’t [sic]
seem as strong.” In response, Fellows assured Thompson it was the same mixture as before. That
was their last communication.
Thompson spent his final hours with his sisters, Bailey and Morgan. At one point, they
took a quick trip to a gas station and a grocery store. Thompson entered those retail establishments
with Bailey while Morgan remained in the car. His sisters noticed that he was slurring his words
and kept falling asleep on the way home. Once home, Thompson and Bailey began watching a
-2- No. 22-3594, United States v. Fellows
movie, but he kept falling asleep. After they stopped watching the movie, Thompson went upstairs
around 9:00 p.m. An hour later, Morgan heard a loud thud from upstairs.
Around 10:30 p.m., Thompson’s parents returned home, and his mother realized that he
was locked in the bathroom and not answering. His father then kicked in the bathroom door to
discover Thompson slumped over with a purple face. He was unresponsive and not breathing
when paramedics arrived in response to a 911 call. They transported him to the hospital and
administered several doses of Narcan, but it was too late. An autopsy concluded that “fentanyl
[was] the cause of death.” The autopsy also discovered that Thompson had atherosclerotic heart
disease, some blockage of the coronary arteries, and cardiomegaly (an enlarged heart).
An investigation of Thompson’s death ensued. At the scene of Thompson’s overdose,
Officer Ted Davis recovered Thompson’s cell phone, wallet, and a white, cellophane plastic baggie
with powder inside it. Davis looked around Thompson’s bedroom but saw nothing significant,
and Thompson’s family declined consent for Davis to search the home for other evidence. DNA
testing of the recovered baggie revealed only Thompson’s DNA. Forensic testing determined the
0.1 gram of powder inside the baggie was a mixture of fentanyl and acetylfentanyl instead of the
fentanyl-heroin mixture referenced in the texts.
And as for those texts, they were reviewed by Officer Brandon Good pursuant to a search
warrant for Thompson’s phone. Good also obtained Thompson’s bank records, which revealed an
ATM withdrawal on April 26 near Fellows’ residence.
FBI Special Agent Lance Kepple, a member of the Cellular Analysis and Survey Team,
analyzed the cell-tower data from Thompson’s phone for the days just before his death. That
information revealed that on each day of the drug transactions—April 24, 25, and 26—
Thompson’s cell phone traveled from Cuyahoga Falls, the town of Thompson’s residence, to a
-3- No. 22-3594, United States v. Fellows
street in Cleveland near Fellows’ residence before returning to Cuyahoga Falls. Those movements
were consistent with the times established by the texts exchanged by Thompson and Fellows. As
to April 26 in particular, Agent Kepple testified that “it’s unlikely that [Thompson’s] vehicle
stopped anywhere during its route of travel” back to Cuyahoga Falls after stopping in Cleveland.
Officer Good also obtained a search warrant for Fellows’ cell phone and then met with
him. Once Fellows learned that the police had copies of the texts that he had exchanged with
Thompson, he confessed to selling drugs. But as to what those drugs were, Fellows’ story changed
multiple times. First, he said they were Xanax tablets. But then he said cocaine. Finally, Fellows
admitted to selling fentanyl, yet he claimed that he had found that drug at a friend’s house and had
sold it to Thompson only once.
A grand jury indicted Fellows on one count of distributing fentanyl, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C). The indictment also included an enhanced penalty provision
under 21 U.S.C. § 841(b)(1)(C), because the fentanyl resulted in Thompson’s death. After the
government presented its case at trial, Fellows moved for a judgment of acquittal, which the district
court denied. He presented no evidence of his own.
The district court then included in the jury instructions an enhanced-penalty instruction in
accordance with the Sixth Circuit Pattern Criminal Jury Instructions, 2021 Edition, Section 14.02.
Fellows made no objection. However, the initial transcript of the jury instruction read: “But-for
causation exists where use of the controlled substance combines with other factors to produce
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NOT RECOMMENDED FOR PUBLICATION File Name: 23a0280n.06
No. 22-3594
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jun 16, 2023 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ON APPEAL FROM THE ) UNITED STATES DISTRICT ) v. COURT FOR THE NORTHERN ) DISTRICT OF OHIO ) DEVONTE L. FELLOWS, ) Defendant-Appellant. OPINION ) )
Before: GILMAN, BUSH, and READLER, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Devonte Fellows sold Austin Thompson fentanyl on three
separate occasions. The third transaction was the last, for afterwards Thompson died. A grand
jury indicted Fellows for distributing fentanyl, in violation of 21 U.S.C. § 841(a)(1), including an
enhanced death-resulting penalty provision under 21 U.S.C. § 841(b)(1)(C). After a jury found
him guilty, Fellows appealed, challenging the sufficiency of the evidence, the jury instructions,
and the procedural and substantive reasonableness of his sentence. Because the district court
correctly denied Fellows’ motion for a judgment of acquittal based on the insufficiency of the
evidence and reasonably sentenced him, we AFFIRM.
I.
Fellows and Thompson were former high-school classmates. Their reunion through the
drug trade ended in tragedy.
Text messages tell much of the story. On April 24, 2019, Fellows exchanged texts with
Thompson, offering to sell him 0.4 grams of a mixture that purported to be heroin and fentanyl. No. 22-3594, United States v. Fellows
After Fellows gave Thompson his address, Thompson confirmed that he planned to leave soon to
meet Fellows and make the purchase. The buy apparently proceeded as planned.
The next day, Thompson texted Fellows, asking for another 0.4 grams of the mixture.
Thompson said that he could meet around 9:00 p.m. that night, which was around the time they
had met the previous night. Fellows agreed. Again, the drug purchase seemed to go smoothly.
The following day, April 26, 2019, Thompson texted Fellows once again to buy more of
the mixture of heroin and fentanyl. Thompson initially asked for around half a gram of the
mixture—a similar quantity to his previous purchases—but Fellows suggested that Thompson
instead purchase a full gram of the mixture to “save a couple trips [sic].” After some haggling
over the price, Thompson texted to say that he would meet Fellows but had to stop at an ATM
first. Fellows then asked Thompson to delete the text messages they had just exchanged. About
an hour later, Fellows told Thompson that he was on his way to meet for the transaction.
Thompson then asked if Fellows had brought a scale to weigh the drugs and said that he would be
there soon.
A few hours after returning home from this third transaction, Thompson texted Fellows,
asking if the mixture he just purchased was different from his earlier buys because it “[d]on’t [sic]
seem as strong.” In response, Fellows assured Thompson it was the same mixture as before. That
was their last communication.
Thompson spent his final hours with his sisters, Bailey and Morgan. At one point, they
took a quick trip to a gas station and a grocery store. Thompson entered those retail establishments
with Bailey while Morgan remained in the car. His sisters noticed that he was slurring his words
and kept falling asleep on the way home. Once home, Thompson and Bailey began watching a
-2- No. 22-3594, United States v. Fellows
movie, but he kept falling asleep. After they stopped watching the movie, Thompson went upstairs
around 9:00 p.m. An hour later, Morgan heard a loud thud from upstairs.
Around 10:30 p.m., Thompson’s parents returned home, and his mother realized that he
was locked in the bathroom and not answering. His father then kicked in the bathroom door to
discover Thompson slumped over with a purple face. He was unresponsive and not breathing
when paramedics arrived in response to a 911 call. They transported him to the hospital and
administered several doses of Narcan, but it was too late. An autopsy concluded that “fentanyl
[was] the cause of death.” The autopsy also discovered that Thompson had atherosclerotic heart
disease, some blockage of the coronary arteries, and cardiomegaly (an enlarged heart).
An investigation of Thompson’s death ensued. At the scene of Thompson’s overdose,
Officer Ted Davis recovered Thompson’s cell phone, wallet, and a white, cellophane plastic baggie
with powder inside it. Davis looked around Thompson’s bedroom but saw nothing significant,
and Thompson’s family declined consent for Davis to search the home for other evidence. DNA
testing of the recovered baggie revealed only Thompson’s DNA. Forensic testing determined the
0.1 gram of powder inside the baggie was a mixture of fentanyl and acetylfentanyl instead of the
fentanyl-heroin mixture referenced in the texts.
And as for those texts, they were reviewed by Officer Brandon Good pursuant to a search
warrant for Thompson’s phone. Good also obtained Thompson’s bank records, which revealed an
ATM withdrawal on April 26 near Fellows’ residence.
FBI Special Agent Lance Kepple, a member of the Cellular Analysis and Survey Team,
analyzed the cell-tower data from Thompson’s phone for the days just before his death. That
information revealed that on each day of the drug transactions—April 24, 25, and 26—
Thompson’s cell phone traveled from Cuyahoga Falls, the town of Thompson’s residence, to a
-3- No. 22-3594, United States v. Fellows
street in Cleveland near Fellows’ residence before returning to Cuyahoga Falls. Those movements
were consistent with the times established by the texts exchanged by Thompson and Fellows. As
to April 26 in particular, Agent Kepple testified that “it’s unlikely that [Thompson’s] vehicle
stopped anywhere during its route of travel” back to Cuyahoga Falls after stopping in Cleveland.
Officer Good also obtained a search warrant for Fellows’ cell phone and then met with
him. Once Fellows learned that the police had copies of the texts that he had exchanged with
Thompson, he confessed to selling drugs. But as to what those drugs were, Fellows’ story changed
multiple times. First, he said they were Xanax tablets. But then he said cocaine. Finally, Fellows
admitted to selling fentanyl, yet he claimed that he had found that drug at a friend’s house and had
sold it to Thompson only once.
A grand jury indicted Fellows on one count of distributing fentanyl, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C). The indictment also included an enhanced penalty provision
under 21 U.S.C. § 841(b)(1)(C), because the fentanyl resulted in Thompson’s death. After the
government presented its case at trial, Fellows moved for a judgment of acquittal, which the district
court denied. He presented no evidence of his own.
The district court then included in the jury instructions an enhanced-penalty instruction in
accordance with the Sixth Circuit Pattern Criminal Jury Instructions, 2021 Edition, Section 14.02.
Fellows made no objection. However, the initial transcript of the jury instruction read: “But-for
causation exists where use of the controlled substance combines with other factors to produce
death, and death would not have occurred ‘without the incremental evening’ of the controlled
substance.” R. 69, PageID 1027–28 (emphasis added). The pattern instruction notably uses the
word “effect” rather than “evening,” which the transcript erroneously included.
-4- No. 22-3594, United States v. Fellows
Upon realizing the mistake, the government moved to correct the record, R. 72, PageID
1036–40, and the district court fixed the typographical mistake in the transcript after confirming it
had instructed the jury accurately, R. 73, PageID 1041.
The jury found Fellows guilty of distributing fentanyl and the death-resulting sentencing
enhancement. R. 63, PageID 341. The presentence report (PSR) calculated a total offense level
as 38, based on the sentencing enhancement, and a criminal-history category of II, which lead to a
Guidelines range of 262 to 327 months of imprisonment. R. 47, PageID 217. Fellows did not
object to the proposed calculation. R.64, PageID 348. After hearing statements from the victim’s
family and the defendant’s allocution, the district court imposed a sentence of 327 months’
imprisonment—the top of the Guidelines range. Id. at PageID 388–39. Once the district court
announced the sentence, the defense had no further objections. Id. at PageID 389. Fellows timely
appealed.
II.
We review de novo the district court’s denial of a defendant’s motion for a judgment of
acquittal challenging the sufficiency of the evidence to support a criminal conviction. United
States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016). To address whether the evidence is
sufficient, we must determine “whether after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The
government had to prove that two things occurred: “(i) knowing or intentional distribution of [a
controlled substance], § 841(a)(1), and (ii) death caused by (‘resulting from’) the use of that drug.
§ 841(b)(1)(C).” Burrage v. United States, 571 U.S. 204, 210 (2014) (footnote omitted). By this
-5- No. 22-3594, United States v. Fellows
standard, we hold that the district court properly denied Fellows’ motion for a judgment of
acquittal.
As to the knowing or intentional distribution of a controlled substance, the government
established that Fellows distributed the fentanyl to Thompson beyond a reasonable doubt. As the
most salient proof, Fellows admitted to selling Thompson fentanyl the day he died. This admission
found confirmation in the text messages arranging the drug transactions, along with the cell-phone-
location data and ATM withdrawals corroborating the texts.
Fellows attempts to place blame on Thompson’s friend Steven Frederick, but no evidence
supported that contention. True, Officer Good found texts between Thompson and Frederick, a
friend and former football teammate of Thompson. But Frederick maintains that he never met
with Thompson on April 26, and Frederick’s sister explained that Thompson never showed up that
day to meet with Frederick. Even more pertinent, Frederick’s sister told Officer Good that
Frederick had not been doing drugs with Thompson “recently because [Frederick] didn’t know the
source of [Thompson’s] drugs.” And Thompson’s phone gave no indication that he bought drugs
from anyone other than Fellows during the decedent’s last few days.
Fellows questions the credibility of various witnesses, but that is not a sufficient basis to
overturn his conviction. We may not “invade the province of the jury as the sole finder of fact in
a jury trial.” United States v. Graham, 622 F.3d 445, 449 (6th Cir. 2010) (quoting United States
v. Bearden, 274 F.3d 1031, 1039 (6th Cir. 2001)). So we may not second guess the credibility that
the jury ascribed to Officer Good’s or Agent Kepple’s testimony, including what Good learned
from Frederick or his sister.
-6- No. 22-3594, United States v. Fellows
Fellows further argues that the search of Thompson’s residence could have led to additional
evidence or that Thompson might have acquired the fentanyl from another drug dealer. But a
reasonable jury was entitled to reject these contentions as mere speculation.
The jury also had a reasonable basis to find that Thompson’s death resulted from the
fentanyl Fellows distributed. To make this showing, the government had to prove that “the drug
. . . [was] a but-for cause of the victim’s death or injury. But-for causation exists where use of the
controlled substance ‘combines with other factors to produce’ death, and death would not have
occurred ‘without the incremental effect’ of the controlled substance.” United States v. Volkman,
797 F.3d 377, 392 (6th Cir. 2015) (quoting Burrage, 571 U.S. at 211, 218–19).
Fellows also points to the other physical conditions of Thompson that were discovered
during the autopsy as explanations for the victim’s passing, Appellant’s Br. at 32, but that does not
undermine the autopsy’s finding that Thompson’s death resulted from fentanyl. R. 68, PageID
659. With 18.2 nanograms per milliliter of fentanyl present in Thompson’s blood, he had a
potentially fatal level of that drug in his system. Id. at PageID 664. And, as Dr. Lisa Kohler, Chief
Medical Examiner for the Summit County Medical Examiner’s Office, testified, Thompson’s other
physical conditions were not lethal. Id. at PageID 658. Accordingly, the record was sufficient for
a reasonable jury to find Fellows guilty of each element underlying his conviction. See United
States v. Skouteris, 51 F.4th 658, 670 (6th Cir. 2022).
Fellows further challenges the jury instructions. But because he did not timely object to
those instructions, we review under the plain-error standard. United States v. Newsom, 452 F.3d
593, 605 (6th Cir. 2006). There was no instructional error—only a typographical mistake in the
transcript. R. 73, PageID 1041. The district court’s actual instructions to the jury and the corrected
instruction transcript strictly adhered to the Sixth Circuit Pattern Instruction 14.02, and Fellows
-7- No. 22-3594, United States v. Fellows
has not shown any other error that affected his rights or the judicial proceedings. See United States
v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).
Fellows rounds out his appeal with challenges to the procedural and substantive
reasonableness of his sentence. We review procedural reasonableness under the plain-error
standard because he did not object at sentencing, United States v. Haj-Hamed, 549 F.3d 1020,
1024 (6th Cir. 2008), and substantive reasonableness under the abuse-of-discretion standard, Gall
v. United States, 552 U.S. 38, 46, 51 (2007). None of the arguments presented by Fellows
regarding the reasonableness of his sentence are persuasive.
A sentence is procedurally unreasonable, in relevant part, if the district court miscalculates
the Guidelines range, treats the Guidelines range as mandatory, or fails to explain its sentence
adequately. United States v. Peebles, 624 F.3d 344, 347 (6th Cir. 2010). The district court properly
calculated the Guidelines range based on the death-resulting enhancement, and Fellows did not
object to the calculations during sentencing. So absent “exceptional circumstances,” the
procedural reasonableness of the imposed sentence will stand. Vonner, 516 F.3d at 386. Fellows
claims that the district court should have considered the Guidelines range without the sentencing
enhancement because he lacked the intent to harm Thompson. Appellant’s Br. at 36. That
argument is unavailing, however. The death-resulting sentencing enhancement applies because he
was convicted under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and there is no requirement that the
defendant had the specific intent for the victim to die, U.S.S.G. § 2D1.1(a)(2).
Finally, regarding substantive reasonableness, a within-Guidelines range is presumed
reasonable, and Fellows’ sentence, while at the top of the range, is within the Guidelines. See
United States v. Elmore, 743 F.3d 1068, 1072 (6th Cir. 2010) (citing United States v. Christman,
607 F.3d 1110, 1118 (6th Cir. 2010)). The district court considered and weighed the § 3553(a)
-8- No. 22-3594, United States v. Fellows
factors when sentencing Fellows, including: personal history and characteristics, the nature and
circumstances of the offense, and the need to protect the public. 18 U.S.C. § 3553(a); R. 64,
PageID 350. The district court particularly focused on the need to protect the public and to deter
Fellows because he was arrested while in possession of 371 Xanax tablets only a few days after
Thompson died. Id. at PageID 385–86. And while the imposed sentence is higher than the
sentence offered by the government while negotiating a potential plea deal, the district court was
not bound by that unaccepted offer. See United States v. Brown, No. 21-3243, 2022 WL 247737,
at *3 (6th Cir. Jan. 27, 2022).
III.
For the foregoing reasons, we AFFIRM.
-9-