United States v. Ivory Lee Dean, III

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 19, 2023
• Docket: 22-5012
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0038n.06

Case Nos. 22-5011/5012

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED Jan 19, 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 IVORY LEE DEAN, III, aka Mark Dean, ) KENTUCKY Defendant-Appellant. ) OPINION )

Before: SUTTON, Chief Judge; CLAY and BUSH, Circuit Judges.

SUTTON, Chief Judge. Ivory Lee Dean, III pleaded guilty to conspiring to distribute

methamphetamine and heroin and to making false statements during firearm purchases. The

district court enhanced his advisory sentencing range based on his possession of a firearm during

the conspiracy. We affirm.

Dean was a middleman. Starting around August 2018, he bought methamphetamine and

heroin from a Louisville supplier and resold the drugs to low-level dealers across Kentucky. As it

happens, Dean also was a convicted felon.

The dominoes began to topple with a traffic stop in December. Officers pulled over two

of Dean’s dealers and found methamphetamine and a loaded revolver. When interrogated by the

police, one of the dealers reported that dealers visited Dean weekly and that he kept drugs and

guns at his Louisville residence. The other dealer said that Dean sold him the drugs and gave him Case Nos. 22-5011/5012, United States v. Dean

the revolver. Other dealers also told officers that Dean traded firearms for drugs and carried two

handguns on a drug delivery trip.

Officers arrested Dean in June 2019. When they searched his residence in connection with

the arrest, they discovered a pistol, drug paraphernalia, ammunition, suspected heroin, digital

scales, and an AR-15 magazine. Dean pleaded guilty to conspiring to distribute 500 grams or more

of a methamphetamine mixture or substance, 21 U.S.C. §§ 846, 841(a)(l), and to making false

statements during firearm purchases, 18 U.S.C. §§ 922(a)(6), 924(a)(2).

The presentence investigation report recommended a two-level enhancement on the

conspiracy count for possessing a firearm under U.S.S.G. § 2D1.1(b)(1). The court applied the

enhancement. It sentenced Dean to 172 months on the conspiracy count to run concurrently with

a 120-month sentence on the firearm purchases count.

On appeal, Dean challenges the two-level enhancement. It applies “[i]f a dangerous

weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). Under the guideline, the

government must first show by a preponderance of the evidence that the defendant possessed the

weapon during “relevant conduct,” which “includes ‘all acts and omissions . . . that were part of

the same course of conduct or common scheme or plan as the offense of conviction.’” United

States v. West, 962 F.3d 183, 188 (6th Cir. 2020) (alteration in original) (quoting U.S.S.G.

§ 1B1.3(a)(2)). If the government meets this burden, the defendant may defeat the presumption

“that the weapon was connected with the crime” by showing that the connection was “clearly

improbable.” United States v. Wheaton, 517 F.3d 350, 367 (6th Cir. 2008) (quoting United States

v. Hough, 276 F.3d 884, 894 (6th Cir. 2002)); see also U.S.S.G. § 2D1.1 cmt. n.11(A); United

States v. Pryor, 842 F.3d 441, 453 (6th Cir. 2016) (listing factors for determining probability of

connection).

2 Case Nos. 22-5011/5012, United States v. Dean

The record establishes a connection between Dean’s possession of firearms and the drug

conspiracy. The district court found that drug dealers came to Dean in Louisville to purchase a

variety of drugs. At Dean’s Louisville residence, officers found suspected heroin, drug

paraphernalia, a pistol, an AR-15 magazine, and ammunition. That evidence suffices to meet the

government’s burden of showing that Dean used a firearm during the drug conspiracy. See United

States v. Benson, 591 F.3d 491, 504 (6th Cir. 2010); United States v. Greeno, 679 F.3d 510, 515

(6th Cir. 2012), abrogated on other grounds, N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.

Ct. 2111 (2022); Wheaton, 517 F.3d at 367–68. In response, Dean did not show below, and does

not argue on appeal, that the pistol at his residence lacked any probable connection to the offense.

What Dean does say on appeal is that the district court should not have relied on his co-

conspirators’ statements in the presentence investigation report. The co-conspirators, he says,

acted out of self-interest when they claimed that Dean carried guns during drug deliveries, traded

meth for firearms, and bought AR-15 ammunition soon after drug transactions. But Dean did not

raise this argument below, requiring us to review it only for plain error. United States v. Geerken,

506 F.3d 461, 464–65 (6th Cir. 2007). That is one problem. The second problem is that Dean has

never disputed the truth of these statements. The third problem is that the credibility of those

statements has little role to play here. The court cited the suspected heroin, pistol, ammunition,

and drug paraphernalia that the officers found at Dean’s residence during the conspiracy to apply

the enhancement. That was all the court needed to apply the enhancement. See Benson, 591 F.3d

at 504. No plain error occurred.

Dean adds that his firearm purchases lacked any connection to the conspiracy. But that

does not matter either. The district court based the enhancement on other facts. Those facts were

3 Case Nos. 22-5011/5012, United States v. Dean

not part of his plea agreement, it is true. But the unfortunate reality for Dean is that they did not

have to be. Geerken, 506 F.3d at 466–67.

We affirm.