NOT RECOMMENDED FOR PUBLICATION File Name: 20a0610n.06
No. 18-6318
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 26, 2020 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN JOSHUA DONALD EWING, ) DISTRICT OF KENTUCKY ) Defendant-Appellant. ) OPINION )
BEFORE: GIBBONS, STRANCH, and BUSH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Joshua Ewing returns to this court seeking to vacate
his sentence and remand his case to the district court for resentencing. He challenges his sentence
as substantively unreasonable and argues that the district court’s departure pursuant to § 5K2.1
was procedurally unreasonable. On this record, we find the term of imprisonment imposed, a
486% increase from the top of Ewing’s guideline range, to be substantively unreasonable. We
VACATE Ewing’s sentence and REMAND the case to the district court for resentencing and
resolution of the claim for restitution.
I. BACKGROUND
On May 5, 2016, Joshua Ewing was indicted on one count of knowingly and intentionally
distributing a mixture or substance containing heroin and fentanyl, the use of which may have
resulted in the overdose death of Jeremy Deaton, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(C). The details of the transaction and the circumstances of Deaton’s death are chronicled No. 18-6318, United States v. Ewing
at length in our first opinion regarding his conviction and sentence. United States v. Ewing, 749 F.
App’x 317, 319–20 (6th Cir. 2018). Ewing went to trial and a jury found him guilty of the indicted
charge. The district court gave Ewing a mandatory life sentence pursuant to the “death results”
provision of § 841(b)(1)(C). See Burrage v. United States, 571 U.S. 204, 210 (2014). It also
imposed a restitution requirement in the amount of $23,094 to pay for Deaton’s funeral.
On appeal, Ewing argued that there was insufficient evidence to support his “death results”
conviction. Under Burrage and its Sixth Circuit progeny, the Government had to prove
(1) “knowing or intentional distribution of heroin [and fentanyl]”; and (2) use of the drug
distributed by the defendant was “a but-for cause of the victim’s death.” 571 U.S. at 210; United
States v. Volkman, 797 F.3d 377, 392 (6th Cir. 2015). We held that the Government failed to show
that Ewing sold the drugs that caused Deaton’s death, reasoning: “the absence of heroin or heroin
metabolites in Deaton’s blood and the lack of any evidence or testimony to explain its absence
leaves us unable to conclude that the jury’s verdict as to the death results [provision] is supported
by sufficient evidence.” Ewing, 749 F. App’x at 330. We therefore vacated Ewing’s death results
conviction and remanded the case to the district court to enter judgment on the lesser-included
offense of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) and for
resentencing. Ewing, 749 F. App’x at 331.
On remand, Ewing’s revised total offense level (12) and criminal history category (VI)
yielded a guideline range of 30 to 37 months of imprisonment. But the Government requested an
18-level upward departure under USSG § 5K2.1, a provision reserved for cases in which “death
resulted.” Cf. § 841(b)(1)(C). To that end, it presented two witnesses, Agent Timothy Graul and
Mike Ward, in an effort to demonstrate that Ewing sold Deaton the drug that led to his death.
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The Government also suggested that, if it declined to depart, the district court should vary above
the guideline range as a result of the court’s evaluation of the § 3553(a) sentencing factors.
The district court sentenced Ewing to 15 years of incarceration and 6 years of supervised
release. It reasoned:
I have found that 30 to 37 months, in my view, does not properly reflect the seriousness of this offense. I think 5K2.1 says I can increase the matter. The question is, is it a variance . . . or would it be a departure. . . . I’m not sure what the difference is. They said I may go up is what it says in the book. But I look at 3553(a) and there’s some seriousness of the offense, people died, a person died.
No mention of the district court’s previous restitution order was made at the second sentencing,
but the previous order of restitution was entered in the Amended Judgment. Ewing appeals the
duration of his prison sentence and the attached restitution order.
II. ANALYSIS
A. Standard of Review
We review a criminal sentence imposed by the district court for procedural and substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). A challenge to a defendant’s legal
eligibility for a sentencing departure is a procedural challenge, whereas the contention that the
resulting sentence is “greater than necessary” is a substantive challenge to the sentence. Holguin-
Hernandez v. United States, 140 S. Ct. 762, 766 (2020); see also United States v. Moon, 513 F.3d
527, 542–44 (6th Cir. 2008). We review a district court’s decision to depart upward or vary from
the guideline range for abuse of discretion. United States v. Erpenbeck, 532 F.3d 423, 440 (6th
Cir. 2008). In doing so, we assess legal conclusions de novo and factual findings for clear error.
United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007).
B. Discussion
We begin with Ewing’s argument that his sentence is substantively unreasonable. “[T]he
substantive reasonableness inquiry determines if the length of a sentence conforms with the
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sentencing goals set forth in 18 U.S.C. § 3553(a) and asks whether the district judge ‘abused his
discretion in determining that the § 3553(a) factors supported the sentence imposed.’” United
States v. Perez-Rodriguez, 960 F.3d 748, 753 (6th Cir. 2020) (quoting Holguin-Hernandez, 140 S.
Ct. at 766). While a sentence is procedurally reasonable where “the trial court follows proper
procedures and gives adequate consideration to [the § 3553(a)] and other listed factors,”
substantive reasonableness review concerns the outcome. Holguin-Hernandez, 140 S. Ct. at 766;
see also United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). Even if the district court
followed proper procedures and adequately considered the appropriate factors, we ask whether the
district court nevertheless imposed a sentence that is “greater than necessary.” Holguin-
Hernandez, 140 S. Ct. at 766–67; see also United States v. Boucher, 937 F.3d 702, 707 (6th Cir.
2019); United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008).
Within the substantive reasonableness inquiry, we must consider “the ‘extent of the
deviation’” from the guidelines range and “make sure that ‘the justification is sufficiently
compelling to support the degree of”” divergence. Perez-Rodriguez, 960 F.3d at 755 (quoting
Gall, 552 U.S. at 50). “The ‘farther the judge’s sentence departs [or varies] from the guidelines
sentence . . . the more compelling the justification based on factors in section 3553(a) must
be.’” United States v. Aleo, 681 F.3d 290, 299 (6th Cir. 2012) (quoting United States v. Poynter,
495 F.3d 349, 352 (6th Cir. 2007)). Imposing a sentence of arbitrary length is substantively
unreasonable. United States v. Nichols, 897 F.3d 729, 737 (6th Cir. 2018).
Ewing first asserts that his present sentence is unreasonable because it rests on the tacitly
restored conclusion that the drugs he sold caused Deaton’s death. On remand, the Government
attempted to establish that Ewing caused Deaton’s death, but it presented no new evidence. Agent
Timothy Graul again testified to the transaction that occurred between Ewing and Deaton. He did
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not speak to Deaton’s cause of death. Mike Ward, a former employee of the Medical Examiner’s
Office, testified that, in his opinion, cocaine alone did not cause Deaton’s death. The district court
ruled: “I think that the evidence is sufficient to find that Mr. Ewing sold Mr. Deaton heroin laced
with fentanyl.” [R 90, PageID 638] The district court did not find that Ewing’s drugs caused
Deaton’s death.
But, whether applied as a departure or justification for a variance, the conclusion that
Ewing caused Deaton’s death informed the district court’s sentencing decision. The district court
reasoned:
I look at 3553(a) and there’s some seriousness of the offense, people died, a person died, a person died after a person had just gotten out of incarceration on probation. There’s got to be some respect for the law. Nobody profits from this. One person died, one person’s paying for it with a substantial period of incarceration.
[Id., PageID 654]
Ewing contends that his sentence is substantively unreasonable for the additional reason
that, save its discussion of the seriousness of his offense and brief reference to his family, the
district court failed to consider the § 3553(a) factors. He argues too, that his 15-year prison
sentence was arbitrarily imposed because the district court simply adopted the Government’s
recommendation of 15 years in prison (the sentence the Government offered—and Ewing
rejected—in plea negotiations) without sufficient independent consideration.
Our substantive reasonableness task is to determine whether the district court provided a
“sufficiently compelling” rationale to support Ewing’s 15-year sentence—a sentence 486% greater
than the top of the guideline range. Gall, 552 U.S. at 50. First, the record reveals that the
Government failed to establish a causal link beyond a reasonable doubt between the drugs sold
and Deaton’s death. Ewing, 749 F. App’x at 329–30. The district court on remand unjustifiably
assumed, without deciding, that Ewing caused Deaton’s death. Second, the district court
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considered only the seriousness of the offense; it did not consider the remaining § 3553(a) factors.
Specifically, the district court gave inadequate consideration to the routine circumstances of the
transaction, Ewing’s own life history and drug addiction, and the residual uncertainty as to whether
the drugs Deaton procured from Ewing caused his death. Third, and perhaps most glaringly, the
district court failed to address Ewing’s explicit warning to Deaton that the drugs were unusually
potent. While it was rightly troubled by the potency of the drugs Ewing sold, the district court
failed to consider the mitigating effect of Ewing’s warning to Deaton to use only half his regular
dose. Because the district court did not consider these critical factors, it failed to provide a
sufficiently compelling rationale for the sentence imposed1; an inadequately justified increase is
not only greater than necessary in Ewing’s case, but it risks creating sentencing disparities between
similar-situated defendants. Boucher, 937 F.3d at 708.
Whether the sentence imposed was predicated on a departure, a variance, or both—Ewing’s
sentence is substantively unreasonable. See Gall, 552 U.S. at 50. A sentencing increase of this
magnitude implicates the numerous protections of substantive reasonableness review particular to
the facts of a defendant’s case and the uniform sentencing policies advanced by the Guidelines.
Boucher, 937 F.3d at 708. It therefore must be buttressed by a correspondingly substantial
justification supported by the record. Perez-Rodriguez, 960 F.3d at 755. Here, it was not.
Regarding Ewing’s procedural reasonableness challenge, we cannot conclusively discern
from the record whether the district court departed under § 5K2.1 or varied following its
assessment of the § 3553(a) factors. But because we conclude that the resulting sentence is
substantively unreasonable either way, there is no need to resolve the parties’ procedural dispute
1 Incorporation of Ewing’s first sentencing proceeding would not alter this result. Ewing’s initial sentence was mandatory. The district court lamented the loss of life, the cost of the drug trade, and noted that Ewing’s warning to Deaton to use less of the unusually potent or “killa” substance was maddeningly prophetic. But barring its summary of the offense, the court did not address the § 3553(a) factors.
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related to the departure’s application. Because Ewing’s sentence is substantively unreasonable,
Holguin-Hernandez, 140 S. Ct. at 766, we vacate his sentence and remand to the district court for
resentencing.
The final issue presented is the restitution order for funeral expenses. The familiar rule is
that “if there is a discrepancy between the oral pronouncement of a criminal sentence and the
written judgment, the oral sentence generally controls.” United States v. Cofield, 233 F.3d 405,
407 (6th Cir. 2000) (citing United States v. Schultz, 855 F.2d 1217, 1225 (6th Cir. 1988)). One
exception, however, is “in a resentencing proceeding where the record suggests a substantial
possibility that the district court misspoke in an oral pronouncement regarding a portion of the
sentence that was neither discussed nor disputed by the parties.” Id. at 407 (quoting United States
v. Jolly, 129 F.3d 287, 289 (2d Cir. 1997)).
Ewing argues that Cofield is distinguishable because there, the omitted supervised release
term was mandatory. He asserts that absent the original “death results” conviction under
§ 841(b)(1)(C), he would have challenged the requirement that he pay for Deaton’s funeral
expenses. He also contends that the district court did not merely misspeak, cf. United States v.
Gibbs, 461 F. App’x 419, 421 (6th Cir. 2012), but “failed to mention a facet of his punishment”
implicated by our decision to vacate the “death results” conviction. Cofield, 233 F.3d at 407; see
also United States v. Penson, 526 F.3d 331, 334–35 (6th Cir. 2008).
The district court did not merely misspeak in this case when it neglected to address
restitution. There is also reason to believe that Ewing would have challenged the restitution order
after we held that there was insufficient evidence linking his actions to Deaton’s death. Ewing,
749 F. App’x at 329. And unlike the supervised release term at issue in Cofield, restitution was
not mandatory. See Cofield, 233 F.3d at 407. Restitution should be considered on remand.
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III. CONCLUSION
For the foregoing reasons and the reasons articulated in the concurrence by Judge Gibbons,
we VACATE Ewing’s sentence, and REMAND the case to the district court for resentencing.
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JULIA SMITH GIBBONS, Circuit Judge, concurring. At Joshua Ewing’s
resentencing, the sentencing guidelines advised the district court to sentence Ewing to somewhere
between 30 to 37 months of imprisonment. He left court that day with a sentence of 180 months
(15 years). Of course, as we know, the sentencing guidelines are only advisory, and an out-of-
guidelines sentence may be entirely warranted in some cases. But any deviation from the
guidelines must be substantively reasonable and “no greater than necessary.” Holguin-Hernandez
v. United States, 140 S. Ct. 762, 766–67 (2020). While I agree that Ewing’s sentence was
substantively unreasonable, I write separately to highlight what I believe to be the district court’s
fundamental error: failing to make the necessary factual finding that the drugs Ewing sold Deaton
caused Deaton’s death.
“A sentence may be considered substantively unreasonable when the district court selects
a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant
sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.” United
States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). Sentences above the guidelines range are
“not entitled to a presumption of reasonableness,” and the “greater the variance” the “more
compelling the justification” must be. United States v. Aleo, 681 F.3d 290, 300 (6th Cir. 2012).
The district court seemed to base its decision to sentence Ewing above the guidelines range
primarily on its assumption that the heroin that Ewing sold to Deaton killed Deaton. But the
assumption that Ewing’s drugs killed Deaton was just that: an assumption. The district court never
actually made a factual finding that Ewing’s drugs were the cause of Deaton’s death. During the
plea colloquy, the district court found that “the evidence is sufficient to find that Mr. Ewing sold
Mr. Deaton heroin laced with fentanyl.” DE 90, Sent. Tr., PageID 638. But it never made that
finding and also failed to find that the heroin laced with fentanyl was the cause of Deaton’s death.
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True, the court seemed to proceed based on a belief that the drugs Ewing sold were the cause of
Deaton’s death, and it made a fleeting reference to “ships passing in the night and . . . collid[ing] .
. . result[ing] in death,” but the district court never explicitly made a finding that those drugs were
the cause of Deaton’s death or gave any factual basis as to how it would have concluded that those
drugs were the cause of Deaton’s death. (DE 90, Sent. Tr., PageID 653.) That failure to make a
factual finding means that this case must be remanded for resentencing.
The dissent disagrees and argues that the district court made the factual finding through
“inference.” Dissent, at 15–16. The dissent believes that since the district court stated (1) that
there was sufficient evidence to find that the drugs Ewing sold Deaton were heroin laced with
fentanyl, and (2) that the judge “heard Mr. Ward testify that he did not believe there was any
cocaine that played a part in Mr. Deaton’s death” that, by “process of elimination,” the district
court found “that it was more likely than not that Deaton died as a result of the heroin laced with
fentanyl sold by Ewing—not another drug.” (Id.) But if the district court truly made this
inferential leap, it should have said so. It is the role of the district court to draw inferences through
explicit explanation; it is not our role to supply the missing inference through guesswork.
Although we must give a district court deference while reviewing its sentence, we need not
read between the lines of the district court’s decision and search for any possible way to justify
that sentence. After all, “our job is to review sentences, not rubber stamp them.” United States v.
Schrank, --- F.3d ---, 2020 WL 5511980, *2 (6th Cir. 2020). This record “leaves [me] unsure as
to the whether the district court” actually found that the drugs Ewing sold Deaton were the cause
of Deaton’s death. United States v. Thomas, 498 F.3d 336, 341 (6th Cir. 2007).
Given that the district court did not make the proper factual finding in this case, the
sentence that Ewing received was based on impermissible factors and was, therefore, substantively
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unreasonable. See Conaster, 514 F.3d at 520. Before a district court may consider a fact during
sentencing, the court must find that fact to be true by a preponderance of the evidence. United
States v. Haj-Hamed, 549 F.3d 1020, 1026 (6th Cir. 2008). As that finding was not made in this
case, the district court’s reliance on its assumption that the drugs Ewing sold caused Deaton’s
death was improper. While this conclusion may, at first glance, seem pedantic, we have an
obligation to “turn square corners” while depriving someone of their liberty. See Dep’t of
Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1909 (2020). No person should
be sentenced—let alone sentenced to a term of imprisonment 486% higher than the guidelines
range—based on assumptions instead of facts.
For that reason, I concur.
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JOHN K. BUSH, Circuit Judge, concurring in part and dissenting in part. I agree that
resentencing is required for restitution, but I would affirm the district court’s sentence with respect
to the term of imprisonment. The government argues that Joshua Ewing failed to preserve his
objection to the imposition of a departure under USSG § 5K2.1, but it is unnecessary to address
that question. Even if Ewing had properly preserved his objection, the district court acted within
its discretion when it determined that Ewing’s crime was no run-of-the-mill drug distribution
offense. Only a few weeks after being placed on probation for another drug-related offense, he
was back on the street selling more drugs. He knew those drugs were exceptionally dangerous—
that is why he described them as “killa” to his customer, Jeremy Deaton. And that danger is why
the district court found that they resulted in Deaton’s overdose death.
The district court departed or varied upward from the Sentencing Guidelines because, as
the court explained, the advisory range “does not properly reflect the seriousness of this offense.”
Though the district court’s statements on the record were brief, enough was said to support the
sentence imposed. That sentence should be affirmed. I therefore respectfully dissent in part from
the majority opinion.
I.
We review Ewing’s sentence for reasonableness under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 41, 46 (2007); United States v. Erpenbeck, 532 F.3d 423, 440
(6th Cir. 2008). This standard considers both the procedural and substantive reasonableness of the
sentence. Gall, 552 U.S. at 51; United States v. Moon, 513 F.3d 527, 539 (6th Cir. 2008).
Review for procedural reasonableness addresses issues such as whether the district court
“fail[ed] to calculate (or improperly calculate[ed]) the Guidelines range, treat[ed] the Guidelines
as mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a sentence based on clearly
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erroneous facts, or fail[ed] to adequately explain the chosen sentence.” Moon, 513 F.3d at 539
(quoting Gall, 552 U.S. at 51); accord United States v. Nichols, 897 F.3d 729, 737 (6th Cir. 2018).
Even if the district court did not “explicitly reference” each § 3553(a) factor at resentencing, a
sentence may be procedurally reasonable if there is “sufficient evidence in the record to
affirmatively demonstrate the court’s consideration of them.” United States v. Johnson, 640 F.3d
195, 203 (6th Cir. 2011) (quoting United States v. McBride, 434 F.3d 470, 475 n.3 (6th Cir. 2006));
see also United States v. Coleman, 835 F.3d 606, 616 (6th Cir. 2016) (“[T]he requirement that a
district court weigh the factors does not obligate the district court to make express on-the-record
‘findings’ on each one . . . [W]e do not ‘read a sentencing transcript in a vacuum . . . [but rather]
review[ ] the record as a whole.’” (citation omitted)).
Review for substantive reasonableness—the majority’s focus—addresses whether the
district court “select[ed] the sentence arbitrarily, base[ed] the sentence on impermissible factors,
fail[ed] to consider pertinent § 3553(a) factors or g[ave] an unreasonable amount of weight to any
pertinent factor.” Moon, 513 F.3d at 543 (quoting United States v. Collington, 461 F.3d 805, 808
(6th Cir. 2006)); accord Nichols, 897 F.3d at 737. An inquiry into substantive reasonableness asks
whether a sentence is “greater than necessary.” United States v. Perez-Rodriguez, 960 F.3d 748,
753 (6th Cir. 2020) (quoting Holguin-Hernandez v. United States, 140 S. Ct. 762, 766–67 (2020)).
To show that a sentence is not greater than necessary, a court must “ensure that the justification is
sufficiently compelling to support the degree of variance.” Id. at 754 (quoting Gall, 552 U.S. at
50). In reviewing this justification, our court “looks to whether the sentence is reasonable, as
opposed to whether in the first instance [it] would have imposed the same sentence.” United States
v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008) (citation omitted).
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Finally, when reviewing the imposition of a departure from the Guidelines range
specifically, we ensure that the district court considered the following questions: “What features
of this case, potentially, take it outside the Guidelines’ ‘heartland’ and make of it a special, or
unusual, case? 2) Has the Commission forbidden departures based on those features? 3) If not, has
the Commission encouraged departures based on those features? 4) If not, has the Commission
discouraged departures based on those features?” Erpenbeck, 532 F.3d at 440 (quoting Koon v.
United States, 518 U.S. 81, 95 (1996)).
II.
The district court did not clarify whether the sentence was based on a departure from the
Sentencing Guidelines under USSG § 5K2.1 or a variance based 18 U.S.C. § 3553(a). It does not
matter which avenue the district court took. As explained below, the sentence should be affirmed
regardless of the basis for the district court’s decision because the sentence is both procedurally
and substantively reasonable.
A. Departure under USSG § 5K2.1
Two potential issues arise with regard to the applicability of USSG § 5K2.1’s “death
resulted” departure: whether Ewing had the requisite intent, and whether the district court found
sufficient evidence of causation. Section 5K2.1 provides, “If death resulted, the court may
increase the sentence above the authorized guideline range.” United States Sentencing
Commission, Guidelines Manual, USSG § 5K2.1, p.s. Despite a circuit split, there exists “no
binding Sixth Circuit or Supreme Court precedent requiring a district court to make an ‘intended’
or ‘knowingly risked’ factual finding” before applying a departure under § 5K2.1. United States
v. Robinson, 732 F. App’x 405, 409 (6th Cir. 2018). Compare United States v. White, 979 F.2d
539, 545 (7th Cir. 1992) (holding that § 5K2.1 departures must “be supported by findings that
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death was intentionally or knowingly risked”) and United States v. Rivalta, 892 F.2d 223, 232–33
(2d Cir. 1989) (same) with United States v. Bayles, 986 F.2d 1415, 1993 WL 46892, at *3 (6th Cir.
1993) (unpublished table opinion) (rejecting that a finding of intentional or knowing risk of a
resulting death is required to impose a § 5K2.1 departure). Regardless of the required intent, the
record supported the district court’s § 5K2.1 departure. Ewing himself referred to the drugs he
sold to Deaton as “killa,” from which the district could conclude that Ewing, in fact, knew that the
drugs could kill Deaton.
Additionally, the district court had sufficient evidence to find a causal link between the
drugs Ewing sold and Deaton’s death. At sentencing, the government need only prove causation
by a preponderance of the evidence—not beyond a reasonable doubt. See United States v. White,
551 F.3d 381, 383 (6th Cir. 2008). That this court vacated Ewing’s prior sentence because the
causal link between the drugs sold and Deaton’s death could not be established beyond a
reasonable doubt is not determinative, United States v. Ewing, 749 F. App’x 317, 329–330 (6th
Cir. 2018), as a district court may “consider…acquitted conduct when [upwardly departing to]
impos[e] sentences below the statutory maximum.” Robinson, 732 F. App’x at 408 (quoting
United States v. Churn, 800 F.3d 768, 780 (6th Cir. 2015)); see also United States v. Watts, 519
U.S. 148, 157 (per curiam) (“[A] jury’s verdict of acquittal does not prevent the sentencing court
from considering conduct underlying the acquitted charge, so long as that conduct has been proved
by a preponderance of the evidence.”).
The district court made an inference based on process of elimination, stating that “there is
sufficient evidence to permit a reasonable jury to find that the drugs sold by Ewing to Deaton was
heroin laced with fentanyl. I’ve just heard Mr. Ward testify that he did not believe there was any
cocaine that played a part in Mr. Deaton’s death. There was evidence that he had used cocaine,
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but by the time he died, there was no cocaine in his blood or any of its analogs.” Furthermore, the
district court explicitly stated that “the evidence is sufficient to find that Mr. Ewing sold Mr.
Deaton heroin laced with fentanyl.” In other words, the district court reasoned that it was more
likely than not that Deaton died as a result of the heroin laced with fentanyl sold by Ewing—not
another drug. Later, the district court clarified, perhaps poetically, that the drug transaction
“result[ed] in a death.”
The district court need not invoke “magic words” when making a factual finding, as long
as we are able to conduct “an informed appellate review.” United States v. Pineda-Duarte, 933
F.3d 519, 525 (6th Cir. 2019) (citation omitted); see also United States v. Bridgewater, 479 F.3d
439, 442 (6th Cir. 2007). We are able to undertake such a review here. Moreover, the district
court explained its basis for its finding immediately following the presentation of the government’s
witnesses, while further explaining that the result of death led the court to impose a higher sentence
after Ewing spoke.
Thus, the district court adequately explained its sentence and supported the departure with
sufficient evidence, satisfying the demands of both procedural and substantive reasonableness.
See Moon, 513 F.3d at 539, 543. As the standard of review on appeal is a “‘deferential abuse-of-
discretion standard’ for reasonableness,” the district court’s finding that Ewing’s drugs more likely
than not caused Deaton’s death is well within the realm of its discretion. Erpenbeck, 532 F.3d at
440 (quoting Gall, 552 U.S. at 41).
B. Section 3553 Factors
The district court’s analysis was also adequate to support a variance from the Guidelines
based on the relevant § 3553 factors. According to the majority, the district court did not consider
“the routine circumstances of the transaction, Ewing’s own life history and drug addiction, and the
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residual uncertainty as to whether the drugs Deaton procured from Ewing caused his death.”
Majority Opinion at 6. In fact, the district court did take those considerations into account, albeit
tersely. But the district court’s brevity is no basis for reversal, given that it said all of the things
that needed to be said.
First, the district court found that the circumstances of the transaction were far from typical.
The court concluded that it is not “routine” for someone to sell lethal drugs soon after being placed
on probation for drug-related offenses. The purpose of probation is to mitigate the impact of
incarceration upon return into lawful society, not allow him to immediately return to a life of crime
with even more deadly consequences than before.
Second, with regard to Ewing’s history and characteristics, the district court did discuss
Ewing’s drug addiction: “I’ve got two families that are hurting…because their sons were drug
addicts. Mr. Ewing is a drug addict just as much as Mr. Deaton was.” See 18 U.S.C. § 3553(a)(1).
The district court also referenced Ewing’s history and characteristics in terms of his own family:
“It results in the father of a brand new baby going to prison.” Id. It was reasonable for the district
court to discount these facts in light of Deaton’s death—considering that, as noted, the district
court was well within its discretion to find that the drugs Ewing sold more likely than not caused
Finally, the majority states that the district court ignored Ewing’s text message to Deaton
that the drugs were “killa.” Majority Opinion at 6. To the contrary, the district court found this
exchange to be probative of Ewing’s intent. In characterizing the text message exchange between
Ewing and Deaton, the district court states that Ewing essentially said, “I got some killa stuff…I’m
going to sell you something that’s bad. It’s so bad that you should only take half of what you
normally take.” The majority reads this “warning” as a mitigating factor, suggesting that the
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defendant was acting cautiously. Majority Opinion at 6. But there is another plausible reading of
the text “killa”—one that the district court, in the exercise of its discretion, was entitled to take and
one that we are required by the standard of review to respect. Namely, the district court was well
within its discretion to read “killa” to mean killer drugs—as in, drugs that can kill you. In the
district court’s view, the word “killa” exposed Ewing’s culpability: he was essentially selling
Deaton a round of Russian roulette—a substance that might lead to a lethal outcome—immediately
after being placed on probation by a state court for another drug offense.
Given Ewing’s text message and the other circumstances of his offense, it was well within
the discretion of the district court to find that his crime warranted a lengthier sentence. The district
court cited those facts—particularly, that Ewing sold “killa” drugs to Deaton soon after being
placed on probation—to support its conclusion that a lengthier sentence would better fulfill the
purposes of punishment outlined in § 3553(a)(2): “(A) [T]o reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment . . . ; (B) to afford adequate
deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” § 3553(a)(2); cf. United States v. Marks,
722 F. App’x 398, 403–04 (6th Cir. 2017) (holding that an upward variance was substantively
reasonable where the defendant demonstrated a “clear pattern of recidivistic behavior that
repeatedly occurred immediately upon his release”). Again, the district court sufficiently
explained its decision based on proper consideration and weighing of the § 3553(a) factors,
conforming to the requirements of both procedural and substantive reasonableness. See Moon,
513 F.3d at 539, 543.
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III.
Ewing’s behavior was far from ordinary: soon after being placed on probation from a drug-
related offense, he showed no remorse or inclination to change his criminal ways. Instead, he sold
“killa” drugs that did exactly what he told his customer they could do—kill him. The district court
could, in its discretion, determine that such behavior warranted an upward variance or departure.
I respectfully dissent.
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