United States v. Kendale Welborn

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 29, 2022
• Docket: 21-5425
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0181n.06

No. 21-5425

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 29, 2022 ) DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN KENDALE WELBORN, ) DISTRICT OF TENNESSEE Defendant-Appellant. ) ) ) )

Before: CLAY, GRIFFIN, and WHITE, Circuit Judges.

WHITE, J., delivered the opinion of the court in which CLAY and GRIFFIN, JJ., joined. CLAY, J. (pp. 17–19), delivered a separate concurring opinion.

HELENE N. WHITE, Circuit Judge. Defendant-Appellant Kendale Welborn appeals

his 140-month sentence for conspiracy to distribute 500 grams or more of a mixture containing

methamphetamine. He argues that his indictment was insufficient because he was charged with

and pleaded guilty of conspiring to distribute a mixture containing methamphetamine but was

sentenced based on a finding that his methamphetamine was actual methamphetamine. He also

contends that the district court erred in following the Sentencing Guidelines because the Guidelines

improperly treat offenses involving methamphetamine of higher purity more harshly than those

involving methamphetamine of lower purity. For the reasons that follow, we AFFIRM. No. 21-5425, United States v. Welborn

I.

In March 2019, police officers in Manchester, Tennessee, stopped a vehicle driven by

Defendant-Appellant Kendale Welborn. Welborn consented to a search of the vehicle, and the

officers found a bag containing approximately 2.5 ounces (i.e., more than 72 grams) of

methamphetamine, digital scales, and approximately $1,130 in cash. The officers also found a key

to a motel room rented by Welborn’s co-defendant. In the room, the officers found Welborn’s

clothes and over 1.5 pounds (i.e., more than 653 grams) of methamphetamine.

In February 2020, a federal grand jury returned a four-count indictment against Welborn

and several co-defendants. The indictment charged Welborn with conspiring to distribute “500

grams or more of a mixture and substance containing a detectable amount of methamphetamine”

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. R.1, PID 1. It also charged Welborn

with possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(C).

Pursuant to a written plea agreement, Welborn pleaded guilty to “[c]onspiracy to distribute

500 grams or more of a mixture and substance containing methamphetamine.” R.72, PID 122. In

exchange, the government agreed to dismiss the possession-with-intent-to-distribute count. It also

agreed to a three-point reduction in the total offense level in consideration of Welborn’s acceptance

of responsibility. Welborn stipulated and agreed that the facts set forth in the plea agreement

satisfied all the elements of the charged offense. He also agreed and acknowledged that: those

facts “do not necessarily constitute all of the facts in the case. Other facts may be relevant to

sentencing;” both he and the government “retain[ed] the right to present additional facts to the

Court to ensure a fair and appropriate sentence in this case;” his sentence “will be determined by

the Court after it receives the presentence investigation report from the United States Probation

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Office and any information presented by the parties;” and “the sentencing determination will be

based upon the entire scope of the defendant’s criminal conduct, the defendant’s criminal history,

and pursuant to other factors and guidelines as set forth in the Sentencing Guidelines and the

factors set forth in 18 U.S.C. § 3553.” R.72, PID 123, 125.

The presentence investigation report (PSR) calculated a base offense level of 36, resulting

in a total offense level of 33 after a three-point reduction for acceptance of responsibility. In

calculating Welborn’s base offense level, the PSR noted that Welborn’s supplier told law

enforcement officials that she supplied him with a total of two kilograms of methamphetamine.

The PSR also relied on laboratory reports from the Drug Enforcement Agency (DEA) stating that

the methamphetamine it tested was 100% pure, which exceeded the 80% threshold for considering

the methamphetamine as actual methamphetamine. Under the Sentencing Guidelines, quantities

of at least 1.5 kilograms but less than 4.5 kilograms of actual methamphetamine result in a base

offense level of 36, and the two kilograms of methamphetamine the PSR attributed to Welborn fell

comfortably within that range. The PSR calculated a criminal-history category of V and,

accordingly, a Guidelines imprisonment range of 210 months to 262 months.

Welborn objected to the PSR, noting that the PSR’s finding that his methamphetamine was

actual methamphetamine contradicted the indictment and plea agreement, which only held him

responsible for a mixture containing methamphetamine. He argued that “Methamphetamine

Actual and Methamphetamine mixture are separate crimes and require different elements of the

crime itself and that he pled guilty to a mixture.” R.141, PID 731. He also argued that he should

only be held responsible for the methamphetamine found in his car and the motel room, as opposed

to the two kilograms his source said she supplied him. According to Welborn, correctly calculated,

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his base offense level was 30, resulting in a total offense level of 27 after a three-point reduction

for acceptance of responsibility, and a Guidelines imprisonment range of 120 to 150 months.1

The government responded in opposition, arguing that “[t]he language of the indictment

does not dictate the Guidelines range—the facts do.” R.206, PID 1060. It urged the court to “reject

any suggestion by [Welborn] that, because he pleaded to a mixture and substance containing

methamphetamine, his Guidelines calculation categorically may not be based on an amount of

methamphetamine (actual).” Id. In a slight deviation from the PSR, the government recommended

a base offense level of 34.2 Based on a total offense level of 31 after a three-point reduction for

acceptance of responsibility, and a criminal-history category of V, the government recommended

a Guidelines range of 168 to 210 months’ imprisonment.

At sentencing, Welborn renewed his objection to the discrepancy in the purity of the

methamphetamine as reflected in the PSR on the one hand, and the indictment and plea agreement

on the other, and again argued that the methamphetamine found in the motel room, which was

rented by his co-defendant, should not be attributed to him. The district court overruled both

objections and accepted the government’s Guidelines calculation. In doing so, the district court

explained that it treated the 725.65 grams of methamphetamine found in Welborn’s car and the

motel room as actual methamphetamine based on the laboratory reports, but “did not incorporate

the additional mixture based on the source’s statement.” R.238, PID 1536–37.

1 Welborn also argued that to the extent an additional two kilograms of methamphetamine were attributable to him based on the statement from his source, his Guidelines imprisonment range should be 140 months to 175 months. 2 In total, the government recovered and tested 725.65 grams of actual methamphetamine from Welborn’s car and the motel room. Because it did not test or intend to produce evidence regarding the purity of the remainder of the methamphetamine the PSR attributed to Welborn, the government asked the district court to treat the remaining untested methamphetamine as a “mixture and substance” containing methamphetamine. The government calculated its proposed base offense level and Guidelines imprisonment range based on the “converted drug weight” of these two amounts.

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The district court granted a downward variance and sentenced Welborn to 140 months’

imprisonment, in part because Welborn’s prior offenses were, in the court’s view, relatively minor

and a Guidelines imprisonment range would be “unduly harsh given Mr. Welborn’s particular

circumstances.” R.238, PID 1537–41. It also dismissed the remaining count in accordance with

the plea agreement.

Welborn timely appealed.

II.

A.

Welborn first argues that his indictment was insufficient because, although it charged him

with conspiring to distribute a methamphetamine mixture, he was sentenced based on a finding

that his methamphetamine was pure or actual methamphetamine. Welborn asserts that the

indictment’s failure to “state the specific purity level that the defendant is charged with,” Appellant

Br. at 15, which he contends is “an element of the crime itself,” id. at 4, violated his “right to know

exactly the crime that he [was] charged with.” Id. at 16. We disagree.

1.

We review de novo the sufficiency of an indictment where a proper objection is made

below. United States v. Howard, 947 F.3d 936, 942 (6th Cir. 2020). But where the defendant fails

to challenge the indictment’s sufficiency in the district court, “the indictment must be construed

liberally in favor of its sufficiency.” Id. (quoting United States v. Gatewood, 173 F.3d 983, 986

(6th Cir. 1999)). An indictment must contain “a plain, concise, and definite written statement of

the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1); see also United

States v. Schaffer, 586 F.3d 414, 422 (6th Cir. 2009). “An indictment is ‘sufficient if it (1) contains

the elements of the charged offense, (2) gives the defendant adequate notice of the charges, and

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(3) protects the defendant against double jeopardy.’” United States v. Rankin, 929 F.3d 399, 404–

05 (6th Cir. 2019) (quoting Valentine v. Konteh, 395 F.3d 626, 631 (6th Cir. 2005)). It must also

include “such a statement of the facts and circumstances as will inform the accused of the specific

offence, coming under the general description, with which he is charged.” Id. at 405 (quoting

Hamling v. United States, 418 U.S. 87, 117–18 (1974)).

The government argues that because Welborn challenges the sufficiency of the indictment

for the first time on appeal, this court should review his challenge for plain error. We need not

address this argument because Welborn’s challenge fails even under de novo review, without

construing the indictment liberally in favor of its sufficiency. See Rankin, 929 F.3d at 405 n.1.

2.

Turning to the merits of Welborn’s claim, we must first determine the elements of the

charged offense, and then determine if the indictment adequately charges those elements. “To

sustain a conviction for drug conspiracy under section 846, the government must prove beyond a

reasonable doubt: (1) an agreement to violate drug laws; (2) knowledge of and intent to join the

conspiracy; and (3) participation in the conspiracy.” United States v. Gardner, 488 F.3d 700, 710

(6th Cir. 2007). The indictment alleges that Welborn and his co-defendants:

did combine, conspire, confederate, and agree to knowingly and intentionally distribute 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(A), and 846.

R.1, PID 1. Thus, the indictment adequately alleges that Welborn and his co-defendants agreed to

violate federal drug laws, namely, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. It further alleges

that they did so “knowingly and intentionally,” and, finally, the indictment alleges that Welborn

did in fact engage in the conspiracy. We have also characterized a “sentence-enhancing drug

quantity” as an element of an offense under Apprendi v. New Jersey, 530 U.S. 466 (2000). See

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United States v. Hobbs, 953 F.3d 853, 856 (6th Cir. 2020). The indictment here alleges the quantity

of drugs involved. Accordingly, the indictment “contains the elements of the charged offense.”

Rankin, 929 F.3d at 404–05.

Welborn contends, however, that the indictment should have specified that his

methamphetamine was actual methamphetamine rather than a mixture because the purity of the

drugs is an element of the charged offense. Welborn cites no authority to support his position, and

we conclude that, under the facts presented, Welborn’s indictment was not insufficient for failing

to specify the purity of his methamphetamine.

3.

The district court relied on the DEA laboratory reports in calculating Welborn’s base

offense level and Guidelines imprisonment range. Treating the 725.65 grams of methamphetamine

found in Welborn’s car and the motel room as actual methamphetamine, the district court arrived

at a base offense level of 34 (reduced to 31 after a three-point reduction for acceptance of

responsibility) and a Guidelines imprisonment range of 168 to 210 months. Had the district court

instead treated the 725.65 grams of methamphetamine as a mixture, Welborn’s base offense level

of 30 (reduced to 27 after a three-point reduction for acceptance of responsibility) would have

resulted in a Guidelines imprisonment range of 120 to 150 months. See U.S.S.G. §§ 5A

(sentencing table); 2D1.1 (Drug Quantity Table).

Although the district court’s use of actual methamphetamine in calculating Welborn’s

sentence increased his Guidelines imprisonment range, it did not increase the applicable minimum

or maximum sentences. Section 841(b)(1)(A)(viii) delineates a single offense that can be

committed in two ways. It provides in relevant part that an offense involving “50 grams or more

of [actual] methamphetamine” or “500 grams or more of a mixture or substance containing a

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detectable amount of methamphetamine” shall subject the defendant to a minimum term of

imprisonment of ten years and a maximum of life. 21 U.S.C. § 841(b)(1)(A)(viii). Because the

725.65 grams of methamphetamine attributed to Welborn exceeded the threshold amounts for both

actual methamphetamine and a mixture of methamphetamine under § 841(b)(1)(A)(viii), he was

subject to minimum and maximum sentences of ten years and life, respectively, under both ways

of satisfying the statute, i.e., without regard to the methamphetamine’s purity.

But Welborn was not charged with violating the subsection in both ways. He was charged

with and pleaded guilty to violating § 841(b)(1)(A) by conspiring to distribute 500 grams or more

of a mixture and substance containing a detectable amount of methamphetamine. From this,

Welborn argues that it was improper for the district court to consider the purity of the

methamphetamine in scoring his Guidelines range. Or, stated differently, he was sentenced for an

offense—conspiracy to distribute more than 50 grams of actual methamphetamine—with which

he not charged or convicted.

We reject this argument because, as discussed above, § 841(b)(1)(A)(viii) delineates a

single offense. Welborn was sentenced for committing the exact offense with which he was

charged and which he pleaded guilty of committing. His conviction was based on his conspiring

to distribute 725.65 grams of a mixture and substance containing a detectable amount of

methamphetamine. Because of the quantity involved, the purity was irrelevant to establishing his

guilt.3

3 In a different case, the purity, or the combination of purity and quantity, of the methamphetamine might indeed correspond to two different offenses. For example, if Welborn had been charged with and pleaded guilty to possessing 300 grams of a mixture containing methamphetamine (a violation of 21 U.S.C. § 841(b)(1)(B)(viii), prescribing minimum and maximum sentences for offenses involving “5 grams or more of [actual] methamphetamine . . . or 50 grams or more,” but less than 500 grams, “of a mixture or substance containing a detectable amount of methamphetamine”), and when tested the substance turned out to be 90% pure, his sentence would be limited to the statutory maximum for the offense actually charged, and he could not be sentenced under the statute applicable to 50

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Further, even if the purity should have been included in the indictment, any error was

harmless because the purity of the drugs did not enhance the statutorily prescribed penalties to

which Welborn was subject given the large amount of methamphetamine (over 500 grams)

attributed to him. See Williams v. Haviland, 467 F.3d 527, 535 (6th Cir. 2006) (stating that “[a]

constitutionally deficient indictment is subject to harmless-error review.”); Rankin, 929 F.3d at

404 (“[W]e will reverse a conviction due to the insufficiency of the indictment only if the

defendant’s substantial rights are affected, meaning he can ‘show[] prejudice to his ability to

defend himself at trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar

subsequent prosecutions.’”) (quoting United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576,

580 (6th Cir. 2002)); see also United States v. Aparicio, 963 F.3d 470, 473–75 (5th Cir. 2020)

(rejecting, on plain error review, argument that indictment alleging possession with intent to

distribute 500 grams of methamphetamine mixture provided insufficient notice of charges where

defendant was sentenced based on finding that methamphetamine was “ice”; although base offense

level and advisory Guidelines range increased, because defendant’s statutory penalty was not

affected, fact that methamphetamine was “ice” was not an element of the offense required to be

alleged in the indictment).

For the reasons set forth above, we reject Welborn’s challenge to the sufficiency of the

indictment.

B.

Welborn also argues that the district court incorrectly determined his Guidelines

imprisonment range. He contends that it should have calculated a lower range based on a finding

grams or more of actual methamphetamine. In that case the amount charged would correspond to two different offenses depending on the purity of the substance.

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that his methamphetamine was a mixture rather than actual methamphetamine. We conclude that

the district court did not err in calculating Welborn’s Guidelines range.

We review the reasonableness of a defendant’s sentence under an abuse-of-discretion

standard. United States v. Fleischer, 971 F.3d 559, 567 (6th Cir. 2020). The reasonableness of a

sentence has both procedural and substantive components. Id. “Procedural reasonableness

requires the court to ‘properly calculate the guidelines range, treat that range as advisory, consider

the sentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors,

select the sentence based on facts that are not clearly erroneous, and adequately explain why it

chose the sentence.’” United States v. Bailey, 931 F.3d 558, 562 (6th Cir. 2019) (quoting United

States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018)). Substantive reasonableness is concerned

with whether “a sentence is too long (if a defendant appeals).” Id. (quoting Rayyan, 885 F.3d at

442).

“In reviewing the district court’s calculation of the Guidelines, we . . . review the district

court’s factual findings for clear error and its legal conclusions de novo.” Fleischer, 971 F.3d at

567 (alteration in original) (quoting United States v. Yancy, 725 F.3d 596, 598 (6th Cir. 2013)).

“A factual finding is clearly erroneous when we—after considering all of the evidence—are ‘left

with the definite and firm conviction that a mistake has been committed’ by the district court.”

United States v. Sands, 4 F.4th 417, 420 (6th Cir. 2021) (quoting Heights Cmty. Cong. v. Hilltop

Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985)).

The district court calculated Welborn’s Guidelines range based on a finding that his

methamphetamine was actual methamphetamine rather than a mixture. That finding was based on

the results of two DEA laboratory reports. Although Welborn suggests that the district court was

constrained by the indictment and guilty plea’s recitation that his offense involved a

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methamphetamine mixture, we have held that in sentencing, “[t]he district court may rely on any

competent evidence in the record; however, the district court’s findings must have some minimum

indicium of reliability beyond mere allegation.” United States v. Treadway, 328 F.3d 878, 884–

85 (6th Cir. 2003) (quoting United States v. Hough, 276 F.3d 884, 891 (6th Cir. 2002)). Welborn

did not dispute the accuracy of the laboratory tests below and does not do so on appeal. The district

court therefore did not err in relying on the laboratory reports in calculating Welborn’s Guidelines

imprisonment range.

Further, we have rejected the argument that a plea agreement constrains the district court’s

sentencing decision in circumstances very similar to Welborn’s. In United States v. Johnson, the

defendant pleaded guilty to possession with intent to distribute 50 grams or more of “a mixture

and substance containing methamphetamine,” which produced a Guidelines imprisonment range

of 60 to 71 months. 812 F. App’x 329, 332–33 (6th Cir. 2020). However, when laboratory results

showed that the mixture of methamphetamine attributed to the defendant contained 67 grams or

more of actual methamphetamine, his Guidelines range was revised to 108 to 135 months of

imprisonment. Id. at 332. In rejecting the defendant’s argument that his plea agreement precluded

the use of a higher base offense level, we emphasized that the plea agreement “served only to limit

the statutory penalties” to which he was subject; it did not prevent the district court from

calculating a higher Guidelines imprisonment range. See id. at 333 (citing United States v. Molina,

469 F.3d 408, 414 (5th Cir. 2006)).

Indeed, we have recognized that sentencing judges, who have “well-established authority

to rely on [their] own factfinding when deciding a defendant’s guidelines range and sentence,”

United States v. Brazil, No. 20-1120, 2020 WL 8511716, at *3 (6th Cir. July 28, 2020) (order),

may properly find facts that increase a defendant’s Guidelines imprisonment range. In United

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States v. Johnson, 732 F.3d 577 (6th Cir. 2013), we rejected the argument that a sentencing court

violates the Sixth Amendment by making a drug quantity determination by a preponderance of the

evidence. Id. at 583–84. We recognized that in Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Alleyne v. United States, 570 U.S. 99 (2013), the Supreme Court made clear that facts that increase

a defendant’s statutory maximum or minimum sentence are elements of a crime that must be

proved to the jury, but concluded that Apprendi and Alleyne do not apply to judicial fact-finding

that “resulted in a Guidelines range above the minimum but below the maximum sentence”

because those facts “do not increase the prescribed statutory penalties.” Id. at 584.

Here, although the purity of Welborn’s drugs increased his Guidelines imprisonment range,

it did not change his minimum or maximum statutory penalties of ten years and life, respectively.

See 21 U.S.C. § 841(b)(1)(A)(viii). The district court therefore committed no error by looking

beyond the indictment and plea agreement in determining Welborn’s sentence.

That Welborn’s plea agreement contained a factual admission that he conspired to

distribute 500 grams or more of a mixture containing methamphetamine does not change this

result. By so stipulating, Welborn “admitted nothing about the purity of that mixture.” Johnson,

812 F. App’x at 333. As we have explained, the Drug Quantity Table in the Sentencing Guidelines

categorizes methamphetamine “in terms of purity into ‘methamphetamine,’ ‘methamphetamine

(actual)’ and ‘ice.’” Id. at 331–32. “Methamphetamine” refers to “the entire weight of any mixture

or substance containing a detectable amount of” methamphetamine, that is, a methamphetamine

mixture. U.S.S.G. § 2D1.1(c) (note (A)); see also Johnson, 812 F. App’x at 332. “Ice,” which is

not at issue in this appeal, is defined as “a mixture or substance containing d-methamphetamine

hydrochloride of at least 80% purity.” U.S.S.G. § 2D1.1(c) (note (C)). Finally,

“methamphetamine (actual)” refers to “the weight of the controlled substance, itself, contained in

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the mixture or substance.” U.S.S.G. § 2D1.1(c) (note (B)). The Drug Quantity Table uses “a

10:1 weight ratio between methamphetamine mixtures and actual methamphetamine or ice.”

Johnson, 812 F. App’x at 332. Thus, “a mixture weighing 10 grams containing

[methamphetamine] at 50% purity contains 5 grams of [methamphetamine] (actual).” U.S.S.G.

§ 2D1.1(c) (note (B)). Here, the indictment and plea agreement indicated only that Welborn

conspired to distribute 500 grams or more of a mixture containing methamphetamine; neither said

anything about “the weight of the [methamphetamine], itself, contained in the mixture or

substance.” U.S.S.G. § 2D1.1(c) (note (B)).

Accordingly, the government was not precluded from presenting additional evidence

regarding the purity of that mixture. Indeed, in his plea agreement, Welborn specifically agreed

that the facts to which he stipulated did “not necessarily constitute all of the facts in the case,”

R.72, PID 123; that “[o]ther facts may be relevant to sentencing,” id.; and that both he and the

government had “the right to present additional facts to the Court to ensure a fair and appropriate

sentence,” id. And, Welborn acknowledged that his sentence would be “based upon the entire

scope of [his] criminal conduct.” R.72, PID 125. In short, Welborn fully agreed and was on notice

of the possibility that his sentence could be increased based on facts not stipulated to in the plea

agreement.

Further, the district court followed the Guidelines’ explicit instructions. Note (B) to the

Drug Table, U.S.S.G. § 2D1.1, instructs sentencing courts 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.” U.S.S.G. § 2D1.1(c) (note (B)) (emphasis

added). Had the district court considered the 725.65 grams of methamphetamine attributed to

Welborn as a mixture, Welborn’s base offense level would have been 30. See U.S.S.G.

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§ 2D1.1(c)(5) (prescribing base offense level of 30 for “[a]t least 500 G but less than 1.5 KG of

Methamphetamine”). The same would be true if the district court only held Welborn responsible

for 500 grams of methamphetamine mixture. See id. By contrast, the 725.65 grams of actual

methamphetamine the district court ultimately attributed to Welborn produces a base offense level

of 34. See U.S.S.G. § 2D1.1(c)(3) (prescribing base offense level of 34 for “at least 500 G but less

than 1.5 KG of Methamphetamine (actual)”). Because the offense level determined by the weight

of the actual methamphetamine attributed to Welborn produced a higher base offense level than

the mixture, the district court correctly applied a base offense level of 34, which resulted in a

correspondingly higher Guidelines imprisonment range. See United States v. Deaton, 8 F. App’x

549, 551 (6th Cir. 2001) (order); see also Johnson, 812 F. App’x at 332.

For these reasons, we conclude that the district court did not err in calculating Welborn’s

Guidelines imprisonment range.

C.

Finally, Welborn argues that this court “should categorically reject, on policy grounds, the

10:1 [ratio] between quantities of Methamphetamine Actual and Methamphetamine Mixture in the

Guidelines.” Appellant Br. at 20. He contends that the Guidelines’ use of the 10:1 weight ratio

lacks empirical basis and rests on an outdated notion that purity is an accurate indicator of a

defendant’s role in the drug-trafficking conspiracy.

Because Welborn did not raise this argument below, we review his challenge for plain

error. See United States v. Zobel, 696 F.3d 558, 566 (6th Cir. 2012). We will find plain error if

the district court “made (1) an error, (2) that was obvious or clear, (3) that affected defendant’s

substantial rights, and (4) that affected the fairness, integrity, or public reputation of the judicial

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proceedings.” United States v. Simmons, 587 F.3d 348, 360 (6th Cir. 2009) (citing United States

v. Houston, 529 F.3d 743, 750 (6th Cir. 2008); Fed. R. Crim. P. 52(b)).

Although the Sentencing Guidelines are “the starting point and the initial benchmark” for

calculating a defendant’s sentence, Gall v. United States, 552 U.S. 38, 49 (2007), “district judges

[may] vary from the Guidelines based on policy disagreements,” United States v. Camacho-

Arellano, 614 F.3d 244, 250 (6th Cir. 2010) (citing Kimbrough v. United States, 552 U.S. 85

(2007); Spears v. United States, 555 U.S. 261 (2009)). And several district courts have rejected

the 10:1 weight ratio between methamphetamine mixture and actual methamphetamine due to

policy disagreements with the Guidelines. See Johnson, 812 F. App’x at 334. But “[t]he question

for this court is not whether we might find any of those reasons persuasive.” Id. Rather, our

inquiry is limited to whether the district court plainly erred in declining to declare a categorical

policy disagreement with § 2D1.1’s distinction between actual and mixed methamphetamine. See

id.

We conclude that the district court did not plainly err in following § 2D1.1 of the

Guidelines. “[T]he fact that a district court may disagree with a Guideline for policy reasons and

may reject the Guidelines range because of that disagreement does not mean that the court must

disagree with that Guideline or that it must reject the Guidelines range if it disagrees.” United

States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011). Moreover, “[w]e have never required a district

court to independently assess the empirical support for a specific Guideline, ‘to delve into the

history’ of the Guideline, or otherwise satisfy itself that the Guideline is proper.” United States v.

Massey, 663 F.3d 852, 862 (6th Cir. 2011) (quoting Brooks, 628 F.3d at 800). Accordingly, “a

district court cannot be said to have” plainly erred “merely because it followed” a Guideline, as

the district court did here. United States v. Lynde, 926 F.3d 275, 280 (6th Cir. 2019).

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III.

For the reasons set forth above, we AFFIRM Welborn’s sentence.

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CLAY, Circuit Judge, concurring. On appeal, Defendant Kendale Welborn challenges

whether the indictment sufficiently alleged the criminal conduct for which he was sentenced, and

whether the district court properly calculated his Sentencing Guidelines; and he asks this Court to

declare a disagreement on policy grounds to being sentenced more severely based on pure

methamphetamine than equal weights of methamphetamine mixture. For the reasons stated in the

majority opinion, Welborn’s sentence should be affirmed.

Interestingly, Welborn has not challenged the validity of his plea agreement. A plea

agreement is only valid when made “voluntarily, knowingly, and intelligently, ‘with sufficient

awareness of the relevant circumstances and likely consequences.’” Bradshaw v. Stumpf, 545 U.S.

175, 183 (2005) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). “[T]he defendant is

required to understand the nature of the charges against him and the consequences of pleading

guilty, including the possible punishments and loss of other rights.” Fitzpatrick v. Robinson,

723 F.3d 624, 639 (6th Cir. 2013). Courts “consider[] all of the relevant circumstances

surrounding” the plea or waiver, including the “possibility of a heavier sentence . . . .” Brady,

397 U.S. at 749.

In its rush to force Welborn into a guilty plea, the government permitted Welborn to plead

guilty to conspiring to distribute a methamphetamine mixture. Doing so left him with the

impression that he would receive a lighter Guidelines range than if he pleaded guilty to or was

convicted of conspiring to distribute pure methamphetamine. It is hard to conceive how Welborn

understood the “likely consequences” of his guilty plea when the government withheld information

that misled him into believing he would receive a shorter sentence. Id. at 748.

This case began with a police search of Welborn during a traffic stop on March 10, 2019,

during which approximately 70 grams of methamphetamine was recovered from his person.

-17- No. 21-5425, United States v. Welborn

The following week investigators discovered approximately 650 grams of additional

methamphetamine in a hotel room in which Welborn was residing. The government attributed a

total of 725.65 grams of methamphetamine to Welborn. In November 2019, the government sent

the two specimens of methamphetamine to the U.S. Department of Justice’s Drug Enforcement

Administration (“DEA”) for purity testing. By December 12, 2019, the DEA had analyzed and

approved the testing of both specimens and determined they were both 100% pure

methamphetamine.

Despite being aware of the drugs’ purity, on February 19, 2020, the government indicted

Welborn for “conspir[ing], confederat[ing], and agree[ing] to knowingly and intentionally

distribute 500 grams or more of a mixture and substance containing a detectable amount of

methamphetamine . . . in violation of [21 U.S.C. §§] 84l(a)(l), 841(b)(l)(A), and 846.” (Indictment,

R. 1, Page ID #1 (emphasis added).) Welborn pleaded guilty to this offense and “admit[ted] that,

as charged in the Indictment, he knowingly conspired with others to distribute in excess of 500

grams of a mixture and substance containing methamphetamine.” (Plea Agreement, R. 72, Page

ID #124 (emphasis added).) By the time the district court accepted the plea agreement on August

25, 2020, the government had known the methamphetamine was pure for more than eight months.

Only after it was too late for Welborn to challenge any of the elements of his conviction

did the government “surprise” Welborn by mentioning for the first time that the methamphetamine

was pure. (Sent’g Tr., R. 238, Page ID #1522.) Instead of calculating Welborn’s Sentencing

Guidelines range based on 725.65 grams of a methamphetamine mixture, as Welborn thought the

court would do when he pleaded guilty, the government requested Welborn be sentenced for the

same weight of actual methamphetamine, which imputes a significantly longer Sentencing

Guidelines range. In other words, the government requested a sentence not based on the facts set

-18- No. 21-5425, United States v. Welborn

forth in the indictment and agreed to in the plea agreement, but instead based on the information

it withheld during plea negotiations.

The government’s conduct in this case was by no means unusual. As the district court

noted, defendants who plead guilty to conspiring to distribute a methamphetamine mixture and

who are then “surprised” at sentencing to learn that the methamphetamine was pure has created

“a recurring problem” for district courts. (Sent’g Tr., R. 238, Page ID #1523.) Whether this bait-

and-switch tactic can be used to induce defendants into enforceable plea agreements is certainly

questionable. At the very least, the government’s conduct in this case created an appearance of

unfairness, which, of course, should be strongly discouraged. However, because Welborn has not

challenged the validity of his plea on appeal (or before the district court), the Court properly

declines to address the merits of this issue.

In sum, I agree with the majority that, under the existing state of this circuit’s law, the

indictment was sufficient and the sentencing court did not err in considering the purity of the

methamphetamine. Accordingly, the judgment of the district court should be affirmed. But

affirming the district court should not be construed as condoning the government’s conduct. To

the contrary, the government’s conduct in this case should be condemned.

-19-