NOT RECOMMENDED FOR PUBLICATION File Name: 20a0459n.06
No. 19-5953 FILED UNITED STATES COURT OF APPEALS Aug 04, 2020 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) ) ON APPEAL FROM THE Plaintiff-Appellee, ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF KENTUCKY ) LAMAR THORNTON, ) ) OPINION Defendant-Appellant. ) )
Before: SUHRHEINRICH, GIBBONS, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Lamar Thornton was convicted of conspiracy to
distribute ten grams or more of heroin and carfentanyl, in violation of 21 U.S.C. § 846. He was
sentenced to 292 months’ imprisonment. He now appeals his conviction and sentence. For the
reasons stated below, we AFFIRM the judgment of the district court.
I.
This is a case about the unlawful distribution of heroin and carfentanyl. The latter is a drug
designed for use as an elephant tranquilizer but also abused for human consumption, utilized on
its own or mixed with heroin. Defendant Lamar Thornton oversaw distribution of these drugs into
Lexington, Kentucky and the surrounding area.
The story of Thornton’s arrest and prosecution centers around two main characters. The
first is Thomas Lehmann, who overdosed after consuming carfentanyl on January 8, 2017.
Authorities found Lehmann in his car, along with “all kinds of drugs”: 32 grams of what Lehmann No. 19-5953, United States v. Thornton
believed to be heroin, 47 grams of methamphetamine, a half-ounce of marijuana, 32 Xanax pills,
and “some suboxones.” Lehmann was taken into custody and later pleaded guilty to conspiring to
distribute drugs with Thornton.
Lehmann testified at trial that he first met Thornton at a Dollar Tree store in Lexington,
Kentucky. There, Thornton gave Lehmann two grams of heroin for free. (The typical user amount
for a single dose of heroin ranges from a tenth to a quarter of a gram.) At the time, Lehmann was
consuming between two and three grams of heroin a day. Thornton brought his associate Darmon
Shaw with him to the meeting. Thornton “directed” Lehmann to contact “Little Bro,” as Thornton
called Shaw, for any future transactions. Thereafter, Lehmann regularly purchased heroin from
Shaw both for himself and to sell to his customers. Lehmann also testified that after he was
incarcerated, he referred a customer, Brian Wylie, to Thornton for his heroin while Lehmann was
in prison. Thornton then called Wylie and invited him to Detroit so they “could start doing
business.”
The second main character is Jerrod Doolin. In January 2017, Jared Sullivan, a special
agent with the Drug Enforcement Administration, received a call that one of Doolin’s drug
customers had overdosed. Agent Sullivan eventually obtained a warrant to search Doolin’s
residence, and upon executing the warrant, authorities found heroin, carfentanyl, and other items
indicative of drug trafficking. Doolin was not present during the search, but Jeff Ruggiero, a fellow
drug trafficker, was there. Sullivan used Ruggiero to locate Doolin. Eventually, Sullivan and
other officials performed a traffic stop of Doolin’s vehicle, where they found cash and drug
paraphernalia. While interviewing Doolin at the police station, Sullivan looked through Doolin’s
phone and found “text messages indicative of drug trafficking.” A number of those messages came
from an out-of-state phone number associated with Thornton. Doolin also identified Thornton,
2 No. 19-5953, United States v. Thornton
known to him by Thornton’s street name “Juice,” as his drug supplier. Like Lehmann, Doolin
purchased heroin and carfentanyl from Thornton but principally transacted with Shaw, whom
Doolin also knew as Little Bro. During a three-month period between the end of 2016 and January
2017, Doolin purchased 30 grams of heroin or carfentanyl from Thornton and Shaw once or twice
a week.
Based on this information from Doolin, Sullivan applied for an authorization order to
obtain GPS location information for Thornton’s out-of-state phone number. In his sworn
affirmation in support of the application, Sullivan stated that Doolin had identified the phone
number as belonging to Thornton, that Thornton had called Doolin from the number while Doolin
was being interviewed by police, that local police knew Juice to be Thornton’s street name, and
that Doolin had identified Thornton as Juice in a photo lineup. The magistrate judge agreed that
locating the cell phone would lead to evidence of controlled-substance offenses and granted
authorization to obtain the location information.
According to the GPS data, the phone was consistently located at a residence in Detroit
that matched the address on Thornton’s driver’s license. Authorities obtained a search warrant for
the residence and an arrest warrant for Thornton, whom they took into custody after he left his
residence in a vehicle with Shaw on January 19, 2017. Sullivan confiscated four cell phones from
Thornton, one of which matched the cell phone number described in the authorization order. The
officers then placed Thornton and Shaw in the back of a police cruiser where, unbeknownst to the
arrestees, Sullivan was recording. The audio captured Thornton’s voice as he used Shaw’s cell
phone to call his girlfriend and instruct her to tell her father to “get the guns out of the house,”
“flush” items in a backpack, and contact T-Mobile to ask whether “they could remotely wipe his
phones.”
3 No. 19-5953, United States v. Thornton
At Thornton’s residence, authorities found evidence that the house was being used to “cut
or process drugs.” Authorities also found a handgun, prescription pills, 99.6 grams of carfentanyl
and 114.7 grams of a mixture of carfentanyl, heroin, and allergy medication—altogether equal to
roughly 2,000 individual-use doses. In an interview following his arrest, Thornton admitted that
those drugs belonged to him.
Before trial, Thornton filed a motion to suppress the evidence found at his residence and a
motion to dismiss the indictment based on an alleged violation of his Sixth Amendment right to a
speedy trial. The district court denied both motions.
A jury convicted Thornton of conspiracy to distribute a mixture or substance containing
heroin and carfentanyl in violation of 21 U.S.C. § 846. Thornton’s Presentence Report calculated
his base offense level to be 30 for a drug offense involving the equivalent of more than 1,000 but
less than 3,000 kilograms of marijuana, with a two-level sentence enhancement for possession of
a firearm, four-level sentence enhancement for being the organizer or leader of a criminal activity
involving five or more participants, and a two-level sentence enhancement for obstruction of
justice. With Thornton’s adjusted offense level and his criminal history, the probation office
recommended a Guidelines range of 292–365 months. The district court agreed with the
Presentence Report and, after considering the factors under 18 U.S.C. § 3553(a), sentenced
Thornton to 292 months’ imprisonment.
II.
Thornton raises four arguments on appeal. First, he argues that the court order authorizing
collection of location data from his cell phone violated the Fourth Amendment. Second, he argues
that his Sixth Amendment right to a speedy trial was violated. Third, he argues that the government
4 No. 19-5953, United States v. Thornton
did not proffer sufficient evidence to sustain his conviction. Fourth, he argues that his sentence
was procedurally and substantively unreasonable. We address each in turn.
A.
Under the Fourth Amendment, “a search warrant may be issued only ‘upon probable cause
supported by an oath or affirmation, and particularly describing the place to be searched, and the
things to be seized.’” Peffer v. Stephens, 880 F.3d 256, 263 (6th Cir. 2018) (quoting U.S. Const.
amend. IV).
Thornton contends that the court order authorizing the collection of location data from his
cell phone violated the Fourth Amendment because it was supported by an “affirmation,” rather
than an affidavit, and that affirmation did not establish probable cause. We review these claims
for plain error because Thornton failed to lodge these specific objections below. See United States
v. Buchanon, 72 F.3d 1217, 1226–27 (6th Cir. 1995). Under that standard, Thornton must show
(1) an “error,” (2) that was “clear or obvious,” (3) “affect[ed] [his] substantial rights,” and (4) that
“seriously affect[ed] the fairness, integrity or public reputation” of judicial proceedings. United
States v. Ramer, 883 F.3d 659, 677 (6th Cir. 2018) (quotations omitted).
Thornton has not shown any error, let alone plain error. First, the government was free to
support its application for a warrant by an “affirmation,” rather than an affidavit. United States v.
Hang Le-Thy Tran, 433 F.3d 472, 482 (6th Cir. 2006) (“The Fourth Amendment does not require
that the basis for probable cause be established in a written affidavit; it merely requires that the
information be given by ‘Oath or affirmation’ before a judicial officer.”).
Second, the affirmation established probable cause. In assessing whether there is probable
cause to issue a search warrant, the task of the issuing magistrate is to determine whether “there is
a ‘fair probability,’ given the totality of the circumstances, that contraband or evidence of a crime
5 No. 19-5953, United States v. Thornton
will be found in a particular place.” Id. (quoting United States v. Shields, 978 F.2d 943, 946 (6th
Cir. 1992)). To establish probable cause, a nexus must exist between the place to be searched and
the sought-after evidence. See United States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005). Here,
the affirmation stated that authorities stopped Jerrod Doolin, who had been identified as a heroin
dealer and who had a distribution amount of heroin in his possession. Doolin, in turn, identified
his supplier as an individual known to him as Juice. When questioned about a phone number in
his cell phone, Doolin identified the phone number in question as one that Juice had used for three
or four weeks. Local police knew Juice to be Thornton and had previously arrested him with 96
grams of heroin in his possession. Doolin confirmed that identification when he identified
Thornton as Juice in a photo lineup. And while Doolin was being interviewed, Thornton called
him and said that he had “150” for Doolin, which Doolin interpreted to mean that Thornton had
150 grams of heroin for him to sell. This evidence was more than sufficient to establish a nexus
between Thornton’s cellphone location data and drug trafficking offenses.
B.
Thornton also claims that his Sixth Amendment right to a speedy trial was violated. The
Sixth Amendment guarantees in relevant part that “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. “The purpose of the speedy-
trial guarantee is to protect the accused against oppressive pre-trial incarceration, the anxiety and
concern due to unresolved criminal charges, and the risk that evidence will be lost or memories
diminished.” Brown v. Romanowski, 845 F.3d 703, 712 (6th Cir. 2017) (collecting cases). We
review “questions of law related to speedy-trial violations de novo and questions of fact for clear
error.” United States v. Sutton, 862 F.3d 547, 554 (6th Cir. 2017) (citing United States v. Carroll,
26 F.3d 1380, 1390 (6th Cir. 1994)).
6 No. 19-5953, United States v. Thornton
In Barker v. Wingo, the Supreme Court established a four-factor test for determining
whether a defendant’s constitutional right to a speedy trial has been violated: (1) the length of the
delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to
the defendant. 407 U.S. 514, 530 (1972). “[N]one of the four factors [is] either a necessary or
sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are
related factors and must be considered together with such other circumstances as may be relevant.”
Id. at 533. And even if all four Barker factors are satisfied, a court is not required to conclude that
a defendant’s speedy trial right has been violated. Id.
1. Length of the Delay
The first Barker factor—the length of the pre-trial delay—functions both as a triggering
mechanism and as a measure of the severity of the prejudice suffered by an accused. First, the
delay must be lengthy enough to warrant a constitutional analysis at all, “since, by definition, [a
defendant] cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact,
prosecuted his case with customary promptness.” Doggett v. United States, 505 U.S. 647, 651–52
(1992) (citing Barker, 407 U.S. at 530–31). Delays of over a year “generally” satisfy the
lengthiness requirement, thereby calling for the full Barker analysis. Id. at 652 n.1.
Here, the delay extended well beyond one year, as Thornton was indicted on February 9,
2017, and his trial began on February 25, 2019. Accordingly, we proceed to the other factors.
2. The Reason for the Delay
“In assessing the second factor, the reason for the delay, the court considers who is most at
fault—the government or the defendant.” Romanowski, 845 F.3d at 714. “A deliberate attempt to
delay the trial in order to hamper the defense should be weighted heavily against the government,”
while a “more neutral reason such as negligence or overcrowded courts should be weighted less
7 No. 19-5953, United States v. Thornton
heavily but nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.” Barker, 407 U.S. at
531.
Here, the overwhelming majority of delays were due to several pre-trial motions filed by
Thornton, and no delays were solely attributable to the United States. This factor thus weighs in
the government’s favor. See United States v. Taylor, 489 F. App’x 34, 47 (6th Cir. 2012) (noting
that, when a delay is caused by the actions of the defendant and his counsel by filing numerous
motions, this factor weighs in favor of concluding that a defendant’s speedy-trial rights were not
violated).
3. Thornton’s Assertion of his Right
The third Barker factor, the defendant’s assertion of his right to a speedy trial, “is entitled
to strong evidentiary weight in determining whether the defendant is being deprived of the right.”
Barker, 407 U.S. at 531–32. “Although a defendant does not waive the right to a speedy trial by
failing to assert it, the degree to which the defendant has asserted the right is one of the factors to
be considered in the balance.” United States v. Brown, 169 F.3d 344, 350 (6th Cir. 1999) (citing
Barker, 407 U.S. at 531–32). This factor is a measure of how quickly the defendant asserted his
right to a speedy trial “in the context of the overall delay.” United States v. Watford, 468 F.3d
891, 907 (6th Cir. 2006).
Thornton first referenced his right to a speedy trial on October 19, 2018, twenty-one
months after his indictment. In the interim, he filed a host of motions requiring delay of his trial.
Thornton’s belated assertion “‘cast[s] doubt on the sincerity of the demand’ and weigh[s] in favor
of the government.” Sutton, 862 F.3d at 561 (quoting United States v. Flowers, 476 F. App’x 55,
63 (6th Cir. 2012)).
8 No. 19-5953, United States v. Thornton
4. Prejudice to Thornton
The last Barker factor is concerned with the prejudice suffered by the defendant.
“A defendant must show that ‘substantial prejudice’ has resulted from the delay.” United States
v. Schreane, 331 F.3d 548, 557 (6th Cir. 2003) (quoting United States v. White, 985 F.2d 271, 276
(6th Cir. 1993)). “[P]rejudice[] should be assessed ‘in the light of’ three interests: (1) to prevent
oppressive pretrial incarceration, (2) to minimize anxiety and concern due to unresolved criminal
charges, and (3) to minimize damage to the defense.” Sutton, 862 F.3d at 561–62 (6th Cir. 2017)
(quoting Barker, 407 U.S. at 532). Damage to the defense is the “most serious,” Barker, 407 U.S.
at 532, and the defendant must demonstrate “how his defense was prejudiced with specificity,”
United States v. Young, 657 F.3d 408, 418 (6th Cir. 2011) (emphasis in original) (quoting United
States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000)). When the defendant fails to “articulate the
harm caused by delay, the reason for the delay (factor 2) will be used to determine whether the
defendant was presumptively prejudiced.” United States v. Williams, 753 F.3d 626, 634 (6th Cir.
2014) (quoting United States v. Mundt, 29 F.3d 233, 236 (6th Cir. 1994)).
Thornton vaguely asserts that he has been unable to properly prepare for his defense given
his incarceration. But he provides no specifics. Because Thornton’s filing several motions was
the primary reason for the delay in his case, and there is no evidence that the government acted in
bad faith or negligently to cause the delay, Thornton’s Sixth Amendment claim must fail.
C.
We next consider the sufficiency of the evidence to support Thornton’s conviction.
We apply de novo review. See United States v. Collins, 799 F.3d 554, 589 (6th Cir. 2015).
“A defendant challenging the sufficiency of the evidence ‘bears a very heavy burden.’” Id.
(quoting United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005)). In evaluating a sufficiency
9 No. 19-5953, United States v. Thornton
challenge, we 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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We “neither independently
weigh[] the evidence, nor judge[] the credibility of witnesses who testified at trial.” United States
v. Talley, 164 F.3d 989, 996 (6th Cir. 1999).
Thornton was convicted of conspiring to distribute a controlled substance, in violation of
21 U.S.C. § 846. To establish a conspiracy under § 846, “the government must prove [1] the
existence of an agreement to violate the drug laws and [2] that each conspirator knew of, intended
to join, and participated in the conspiracy.” United States v. Volkman, 797 F.3d 377, 390 (6th Cir.
2015) (quoting United States v. Conrad, 507 F.3d 424, 432 (6th Cir. 2007)). “The connection
between a defendant and the conspiracy need only be slight,” id. (quoting United States v. Craft,
495 F.3d 259, 265 (6th Cir. 2007)), and a “conspiracy may be inferred from circumstantial
evidence which may reasonably be interpreted as participation in a common plan,” Conrad, 507
F.3d at 432.
The government produced sufficient evidence to convict Thornton of violating 21 U.S.C.
§ 846. The evidence showed that Thornton developed business relationships with Jerrod Doolin
and Thomas Lehmann, who then distributed drugs in the Lexington area. Thornton then directed
them to work through another associate, Darmon Shaw, whom they knew as “Little Bro.” For
much of late 2016 and early 2017, Doolin purchased heroin several times a week from Shaw, who
had received the heroin from Thornton. Doolin then turned around and sold the drugs to his own
customers.
Thornton also supplied heroin to Lehmann, who in turn sold to his own clients around
Lexington. Lehmann purchased his drugs from Shaw, as Thornton had directed. Thornton and
10 No. 19-5953, United States v. Thornton
Shaw “fronted” some of the drugs that they provided to Lehmann, meaning that Lehmann paid
only part of the purchase price when he obtained the drugs, and paid the balance back when he had
sold drugs to his own customers. Lehmann purchased heroin from Thornton, through Shaw, for
two months. In the weeks leading up to his arrest, Lehmann purchased between thirty and thirty-
two grams at a time, several times per week.
On the day he was arrested, Lehmann purchased 32 grams (approximately 320 doses) of
carfentanyl from Shaw. Also, after his arrest, Lehmann called Thornton from jail to suggest that
Lehmann’s associate Brian Wylie take over for Lehmann while the latter was in prison. Thornton
then called Wylie to invite him to Detroit to join in his scheme, but Wylie refused to go. Both
Doolin and Lehmann cooperated against Thornton, describing to law enforcement how they
purchased heroin in Lexington from Shaw, who was supplied in Detroit by Thornton.
After his arrest, Thornton called his girlfriend demanding that she destroy evidence.
A search of Thornton’s vehicle revealed more than $900 in cash and four cell phones. A search
of his residence revealed drug paraphernalia, nearly 100 grams of heroin mixed with carfentanyl,
and approximately 114 grams of carfentanyl. The quantity of drugs represented over 2,000
individual doses with a street value of more than $20,000.
From this evidence, a rational factfinder could conclude beyond a reasonable doubt that
there existed an agreement between Thornton and others to distribute drugs and that Thornton was
an active participant in the scheme. Thornton regularly communicated with Doolin and Lehmann.
He was arrested with Shaw in his vehicle. Both Doolin and Lehmann obtained their drugs from
Shaw, who acted as Thornton’s middleman.
Thornton claims that he was not engaged in a larger conspiracy, but rather he engaged in
nothing more than a few individual drug transactions. To be sure, a “buyer-seller relationship
11 No. 19-5953, United States v. Thornton
alone is insufficient to tie a buyer to a conspiracy.” United States v. Deitz, 577 F.3d 672, 680 (6th
Cir. 2009) (quotations omitted). But, we have “often upheld conspiracy convictions where there
was additional evidence . . . from which the knowledge of the conspiracy could be inferred.” Id.
We have identified four factors in determining whether a series of drug transactions comprise part
of a larger conspiracy: “(1) the length of the relationship; (2) the established method of payment;
(3) the extent to which transactions are standardized; and (4) the level of mutual trust between the
buyer and the seller.” Id. at 681 (citation omitted).
Here, the evidence established far more than a simple buyer-seller relationship. Thornton
was not a buyer, but rather a seller to, at a minimum, two buyers—Doolin and Lehmann.
Thornton’s relationship with those individuals lasted for several months, and at least as to
Lehmann, involved sales on credit. See United States v. Lopez-Medina, 461 F.3d 724, 747 (6th
Cir. 2006) (noting that “fronting” drugs to a buyer may demonstrate more than a mere buyer-seller
relationship). Those sales were standardized, as Doolin and Lehmann regularly purchased 30
grams of heroin and carfentanyl multiple times a week through Thornton’s middleman, Shaw.
Evidence of repeated purchases involving large quantities of drugs is evidence of a conspiracy
rather than a buyer-seller relationship. United States v. Martinez, 430 F.3d 317, 332–33 (6th Cir.
2005). Over the course of the conspiracy, Lehmann and Doolin received hundreds of grams of
heroin and carfentanyl, which translated to thousands of individual doses. And there was
significant trust between Doolin, Lehmann and Thornton. Both Doolin and Lehmann warned
Thornton to be careful after they had been arrested, and Lehmann tried to find a replacement to
take over his distribution ring while he was in custody.1
1 Thornton briefly argues that the evidence is insufficient to sustain his conviction because the government failed to prove that he knew he was distributing carfentanyl rather than heroin. That argument has no merit because the government only had to prove that Thornton knew “that the substance he [was] dealing with [was] some unspecified substance listed on the federal drug schedules.” McFadden v. United States, 576 U.S. 186, 191 (2015).
12 No. 19-5953, United States v. Thornton
D.
Finally, Thornton challenges the procedural reasonableness of his sentence. 2 We review
the reasonableness of a sentence for abuse of discretion. United States v. Dunnican, 961 F.3d 859,
880 (6th Cir. 2020) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). Any factual findings
made at sentencing are reviewed for clear error. United States v. West, 962 F.3d 183, 187 (6th Cir.
2020). A procedural reasonableness challenge “requires us to ensure that the district court: (1)
properly calculated the applicable advisory Guidelines range; (2) considered the other 18 U.S.C.
§ 3553(a) factors as well as [arguments for a sentence outside the range]; and (3) adequately
articulated its reasoning for imposing the particular sentence chosen.” Id. (quotation omitted)
(alteration in original). Thornton challenges his base offense level and three enhancements that
the district court imposed. We review each in turn.
1. Base Offense Level
Thornton first challenges his base offense level of 30. “For defendants convicted of drug
crimes, the base offense level at sentencing depends on the amount of drugs involved in the
offense.” United States v. Averill, 636 F. App’x 312, 315 (6th Cir. 2016) (citing U.S.S.G.
§ 2D1.1(c)). The district court’s drug-quantity determination is reviewed for clear error. United
States v. Rios, 830 F.3d 403, 436 (6th Cir. 2016). In reaching that determination, “[t]he district
court may rely on any competent evidence in the record.” United States v. Hough, 276 F.3d 884,
891 (6th Cir. 2002).
2 Thornton mentions, in a heading, that he is also challenging the substantive reasonableness of his sentence. However, he has failed to present any arguments as to why his 292-month sentence—which is at the very bottom of the Guideline recommendation—was substantively unreasonable. He has therefore forfeited his substantive reasonableness challenge. See McPherson v. Kelsey, 125 F.3d 989, 995 (6th Cir. 1997) (first and third alterations in original) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed [forfeited]. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” (citations omitted)).
13 No. 19-5953, United States v. Thornton
The district court held Thornton accountable for 672 grams of heroin and 32 grams of
carfentanyl that Thornton distributed to Lehmann and 215 grams of carfentanyl that was found in
Thornton’s residence after his arrest. Those amounts, under the Guidelines, are equivalent to
1,286.8575 kilograms of marijuana, which sets a base offense level of 30. U.S.S.G. §2D1.1(c)(5),
cmt. n.8.
Thornton contends that he should not be held accountable for the 672 grams of heroin and
32 grams of carfentanyl that were in Lehmann’s possession. Under the Guidelines, a defendant’s
base level can be enhanced based on the acts of others within a conspiracy. See U.S.S.G.
§ 1B1.3(a)(1)(B). “[I]n order to hold a defendant accountable for the acts of others [under
§ 1B1.3(a)(1)(B)], a district court must make two particularized findings: (1) that the acts were
within the scope of the defendant’s agreement; and (2) that they were foreseeable to the defendant.”
United States v. Campbell, 279 F.3d 392, 399–400 (6th Cir. 2002) (quotation omitted).
The district court made both requisite findings. The district court found that Thornton and
Lehmann agreed to an arrangement whereby Thornton would traffic drugs from Detroit to Central
Kentucky, where the drugs would then be distributed by other people. The district court then found
that, because Lehmann contacted Thornton to be a distributor in Kentucky, it was reasonably
foreseeable that Lehmann would possess Thornton’s drugs.
Thornton contends that Lehman was an “unreliable witness” and thus lacked credibility.
But, the district court concluded that Lehmann’s testimony was credible. The district court heard
evidence from Doolin and Lehmann that confirmed the drug quantity and heard other
corroborating evidence that supported the drug quantity. We find no error in Thornton’s base
offense level.
14 No. 19-5953, United States v. Thornton
2. Firearm Enhancement
Thornton next challenges his enhancement for a drug offense that involved a firearm. See
U.S.S.G. § 2D1.1(b)(1). The enhancement applies “if the weapon was present, unless it is clearly
improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1 cmt. n.11(A).
The government must establish by a preponderance of the evidence that a defendant possessed the
firearm during the drug trafficking crime. United States v. Miggins, 302 F.3d 384, 390–91 (6th
Cir. 2002).
Here, officers found a loaded .380 caliber handgun on a shelf on a mantel on top of several
pills. It was in close proximity to the room where there was drug manufacturing equipment, drug
paraphernalia, and over 200 grams of heroin and carfentanyl. And, when Thornton was in the back
of the police cruiser after being arrested, he called his girlfriend to tell her father to get rid of the
guns that Thornton had stored in his home. The district court did not clearly err in determining
that the handgun found alongside several pills and in close proximity to heroin, carfentanyl,
manufacturing materials, and paraphernalia, was used during the commission of the offense.
Likewise, it was not “clearly improbable that the weapon was connected with the offense.”
U.S.S.G. §2D1.1 cmt. n.11(A).
3. Aggravating-Role Enhancement
Thornton next challenges his aggravating-role enhancement. The enhancement applies
when a defendant was an “organizer or leader of a criminal activity that involved five or more
participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a)(1). “We review the factual findings
of the district court on this issue for clear error and accord deference to the legal conclusion that a
person is an organizer or leader under Section 3B1.1. United States v. Olive, 804 F.3d 747, 759
(6th Cir. 2015) (citing United States v. Washington, 715 F.3d 975, 983 (6th Cir. 2013)). Relevant
15 No. 19-5953, United States v. Thornton
factors include “the exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right to a larger share of
the fruits of the crime, the degree of participation in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of control and authority exercised over others.”
U.S.S.G. § 3B1.1 cmt. n.4. In addition, a defendant need only have led “one . . . other
participant[].” Id. § 3B1.1 cmt. n.2.
The district court did not err in imposing this enhancement. Thornton contends that the
crime did not involve five people, but the district court found otherwise. Thornton’s drug-
distribution scheme involved, at a minimum, himself, Shaw, Lehmann, Doolin, and Ruggiero.
There was also Wylie, who watched over Lehmann’s drug supply and nearly took over Lehmann’s
role in the conspiracy, as well as several unidentified participants who were noted at trial.
Testimony also showed that Thornton exercised a great deal of authority over his co-conspirators,
that he actively participated in recruiting dealers, and that he sold drugs himself. The district court
did not clearly err in imposing this enhancement.
4. Obstruction-of-Justice Enhancement
Finally, Thornton challenges the obstruction-of-justice enhancement. We review the
district court’s factual findings for clear error and its determination of the enhancement’s
applicability de novo. See United States v. Watkins, 691 F.3d 841, 851 (6th Cir. 2012). The
enhancement applies where a defendant “willfully obstructed or impeded, or attempted to obstruct
or impede . . . the investigation” that resulted in the defendant’s conviction. U.S.S.G. § 3C1.1(1).
Obstruction under the Guidelines includes “destroying or concealing or directing or procuring
another person to destroy or conceal evidence that is material to an official investigation . . . or
attempting to do so.” Id. § 3C1.1 cmt. n.4(D). Where “such conduct occurred contemporaneously
16 No. 19-5953, United States v. Thornton
with arrest,” the enhancement applies if that conduct “resulted in a material hindrance to the
official investigation or prosecution.” Id.; see United States v. Lineberry, 7 F. App’x 520, 524–25
(6th Cir. 2001) (per curiam) (“Concealing evidence material to an official investigation or judicial
proceeding, or directing or procuring another person to do so, or attempting to do so, will trigger
an enhancement for obstruction of justice.”).
The district court did not err in imposing this enhancement. After his arrest, Thornton
made two phone calls to his girlfriend, in which he directed her to tell her father to dispose of the
guns in his home, to flush contraband, and to erase Thornton’s phones, among other things. In a
third call, the girlfriend confirmed that her father did what Thornton had asked. Because Thornton
attempted to “destroy[] or conceal[] or procur[e] another person to destroy or conceal evidence,”
U.S.S.G. § 3C1.1 cmt. n.4(D), which likely resulted in a material hindrance to the investigation,
the district court did not err in imposing an obstruction-of-justice enhancement.
III.
For the reasons discussed above, we AFFIRM Thornton’s conviction and sentence.