United States v. Rashard Smith

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 1, 2018
• Docket: 17-3718
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0550n.06

Nos. 17-3699, 17-3714, 17-3718

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Nov 01, 2018 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE CHRISTOPHER FITZGERALD (No. 17-3699); ) NORTHERN DISTRICT OF CHIQUITA ANDERSON (No. 17-3714); ) OHIO RASHARD SMITH (No. 17-3718), ) ) OPINION Defendants-Appellants. )

BEFORE: GUY, WHITE, and STRANCH, Circuit Judges.

JANE B. STRANCH, Circuit Judge. A jury found Christopher Fitzgerald, Chiquita

Anderson, and Rashard Smith guilty of conspiracy to distribute cocaine through Fitzgerald’s and

Smith’s employer, Federal Express (FedEx), and for using a telephone to facilitate the commission

of the conspiracy. Fitzgerald was also convicted of distributing cocaine, and Anderson was

convicted of managing a drug premises. On appeal, Fitzgerald challenges the search warrant

executed on his residence, the sufficiency of the evidence for his conspiracy and distribution

convictions, the district court’s determination of drug quantity involved in the conspiracy, the

obstruction of justice enhancement to his sentence, and the reasonableness of his sentence.

Anderson similarly challenges the sufficiency of the evidence for her three convictions, the court’s

determination of drug quantity, and the reasonableness of her sentence. Smith solely challenges Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

the court’s determination of drug quantity for his sentence. We conclude that while the search

warrant did not establish probable cause to search Fitzgerald’s residence, the good-faith exception

rescues the search. We further find that the jury had sufficient evidence to convict Fitzgerald and

Anderson and that the district court committed no errors in sentencing. Accordingly, we AFFIRM

the district court’s denial of Fitzgerald’s motion to suppress, AFFIRM defendants’ convictions,

and AFFIRM defendants’ sentences.

I. BACKGROUND

A. The Conspiracy

The charges against defendants Fitzgerald, Anderson, and Smith arose from a complex

year-long investigation of Walter Walker, a suspected drug trafficker with prior drug convictions,

by the Northern Ohio Law Enforcement Task Force (NOLETF), a joint federal, state, and local

task force. NOLETF linked Fitzgerald to Walker on April 7, 2014, when police responded to an

emergency call by a man who attempted suicide in an apartment in Aurora, Ohio. The apartment

was leased to Fitzgerald, who subleased it to Walker; the man who attempted suicide was Walker’s

cousin and admitted to helping Walker traffic drugs. Upon entering the apartment after the

emergency call, officers observed items consistent with drug trafficking, such as suitcases with the

backing cut open, vacuum-sealer bags, wrappings with white residue on them, and wrappings

smeared with mustard, a technique believed to be used to thwart drug-sniffing dogs. During a

subsequent narcotics search of the Aurora apartment, many of the drug-related items were missing.

Officers suspected that Fitzgerald and Walker, who were at the apartment building between the

initial search and the narcotics search, had removed the items

For the next year, NOLETF officers used physical and video surveillance, tracking devices

on vehicles, toll data on telephones, and authorized wiretaps on Walker’s and Fitzgerald’s cell

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phones to gather information about potential drug trafficking. NOLETF also used a confidential

informant, known as CS#5. In May 2015, the informant, who claimed to speak frequently with

Anderson, Fitzgerald’s half-sister, told officers that Fitzgerald and Walker used FedEx to ship

large quantities of cocaine and marijuana to the Cleveland area and that Anderson helped pick up

drug shipments from Fitzgerald. The informant repeatedly provided information about Walker,

Fitzgerald, and Anderson, as officers monitored coded cell phone conversations between the

suspects that allegedly alluded to drug deliveries, but neither the informant nor the officers

observed any drug transactions or seized any contraband between April 2014 and April 2015.

Details regarding a conspiracy emerged after Walker turned himself in to authorities in

April 2015. Walker testified in Fitzgerald, Smith, and Anderson’s federal trial in April 2016, as

follows. Since approximately 2010, Fitzgerald had used his position as a FedEx delivery driver to

help Walker deliver drugs to the Cleveland area—first, marijuana from Arizona and later, cocaine

from California. Each cocaine shipment contained between one and two kilograms of cocaine,

though Walker also mentioned at least five “dry runs” that did not contain drugs. Shipments were

consistent, as frequent as once per week. After receiving the FedEx packages, Walker stored drugs

and money at Anderson’s house, where he divided the drug shipments into smaller quantities for

distribution. Walker also asked Anderson to drive behind his car when he was delivering drugs to

help him avoid detection by police. By 2013, Fitzgerald had recruited his coworker Smith to

deliver packages of drugs on his weekday delivery route, while Fitzgerald handled Saturday

deliveries. On several occasions, Fitzgerald also helped Walker transport money to California by

concealing cash in the lining of suitcases.

Fitzgerald, drawing on his 18 years as a FedEx driver, suggested methods for Walker’s

shipments to evade detection by authorities. He advised Walker to create a business account under

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a false name with an address located in a state not known as a “source” state for drugs. Walker

testified he made three or four accounts to send packages from California. The investigation

specifically identified one of Walker’s accounts under the name Elizabeth Pankratz of Praxair

Medical Supplies, a fictional company based in North Dakota, which sent 38 packages between

April 2014 and April 2015. Fitzgerald also recommended shipping to businesses such as hospitals

and using hard black cases by the brand Pelican to ship the drugs, as investigators were less likely

to attempt to open a locked case. When he required more detailed tracking information about

packages, Fitzgerald paid another FedEx employee, Shannon Grzybowski, to pull that information

for him and, on two occasions, put Pelican cases on hold for him or Smith to pick up and deliver.

Walker testified that he met with Fitzgerald on January 31, 2015, to pick up a cocaine

shipment and that he then went to Anderson’s residence to break down the drugs, calling

Anderson’s cell phone to let her know he arrived. Based on evidence provided by the Government,

NOLETF officers attempted to witness the January 31 delivery after intercepting several phone

calls between Walker and Fitzgerald discussing possible meeting places. Though officers did not

observe the delivery, the tracking device on Walker’s car showed him near one of the agreed-upon

spots on Fitzgerald’s delivery route at the delivery time. An officer testified that the tracker

showed Walker’s vehicle then went immediately to Anderson’s address, and officers watched

Walker leave the residence. In subsequent months, video surveillance of Anderson’s residence

showed Walker entering with Pelican cases and giving Anderson what an officer believed was

money, and Anderson leaving the residence to follow Walker in her car. At trial, Fitzgerald denied

on the stand that he met Walker on January 31.

Walker testified that he initially paid Fitzgerald $50 per pound of marijuana delivered and

between $2,000 and $2,500 per shipment of cocaine. Fitzgerald then paid Smith, though Walker

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claimed he also dealt with Smith directly over five times. Walker periodically paid Anderson

$1,000 for the use of her home and her assistance as a lookout. Fitzgerald used some of his

earnings to buy and manage bars and clubs where Anderson also worked. By the time Walker

turned himself in, he owed Fitzgerald and Smith between $20,000, according to Walker, and

$31,000, according to Fitzgerald.

B. Search Warrant for Fitzgerald’s Residence

On April 9, 2015, NOLETF detectives applied for and received search warrants for

Fitzgerald’s residence, Fitzgerald’s storage locker, Anderson’s residence, two locations where

Walker resided, and Walker’s storage locker. The 62-page affidavit in support of the search

warrant on Fitzgerald’s residence in Beachwood, Ohio primarily describes confidential informant

CS#5’s statements, locations tracked for Walker’s vehicle, and transcripts of wiretapped phone

conversations between Walker, Fitzgerald, and Anderson. The first four pages stated the affiant

John Guzik’s qualifications as a narcotics detective and provided standard information regarding

drug crimes. The Beachwood address is only mentioned six times, primarily establishing it as

Fitzgerald’s residence.

When executing the search warrants, officers did not find drugs but did find Pelican cases,

cash, burner phones, suitcases, and money counters at Walker’s residences, as well as scales and

Pelican cases at Anderson’s residence. At Fitzgerald’s residence, officers seized Pelican cases,

suitcases with cut-out backs, and over $20,000 in cash, all of which Fitzgerald later sought to

suppress.

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C. Trial and Sentencing

After the searches, Walker turned himself in to authorities and agreed to plead guilty to

conspiracy to possess with intent to distribute cocaine and to testify at Fitzgerald, Anderson, and

Smith’s trial in return for a possible sentence reduction. He received a sentence of 57 months.

On April 20, 2016, Fitzgerald, Anderson, and Smith were indicted on nine counts. Count

One for all three defendants was conspiring to possess with intent to distribute cocaine, in violation

of 21 U.S.C. § 846 and 21 U.S.C. § 841. Only Fitzgerald was charged with intent to distribute a

specific quantity amount of cocaine—five kilograms or more. Fitzgerald was named in five

additional counts: distributing cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count

Two); using a communication facility (his employer, FedEx) to facilitate the conspiracy and

distribution of cocaine in violation of 21 U.S.C. § 843(b) (Count Three); and using a

communication facility (a telephone) on three separate occasions to facilitate the conspiracy in

violation of 21 U.S.C. § 843(b) (Counts Five, Seven, and Nine). Anderson was named in two

more counts: managing premises for the purpose of manufacturing, storing, distributing, and using

cocaine in violation of 21 U.S.C. § 856(a)(2) (Count Four); and using a telephone to facilitate the

conspiracy in violation of 21 U.S.C. § 843(b) (Count Six). Smith was named in one more count

of using a telephone to facilitate the conspiracy in violation of 21 U.S.C. § 843(b) (Count Eight).

During seven days of trial, the Government presented testimony by Walker; Grzybowski,

the FedEx employee who also pled guilty and testified as part of her plea agreement; a FedEx

security specialist; a representative of an actually existing company named Praxair (not based in

North Dakota); and numerous law enforcement officials from different agencies involved with the

investigation. Fitzgerald testified; Anderson and Smith did not. Fitzgerald testified that his phone

conversations intercepted by NOLETF involved Walker’s attempted investments in Fitzgerald’s

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bars, not drug deliveries, and that Fitzgerald’s work at the bars generated the extra cash he

deposited each month, which he did not report in his tax returns. On cross examination, he denied

meeting Walker on January 31, 2015. The jury returned verdicts of guilty on all counts for all

defendants and a forfeiture verdict for Fitzgerald. The district court denied each defendant’s oral

motion for acquittal.

The court separately sentenced each defendant. The court found that Fitzgerald committed

perjury when he denied he met Walker on January 31, 2015, meriting a two-level obstruction of

justice enhancement. In calculating Fitzgerald’s Guidelines range, the court found the conspiracy

involved at least 38 kilograms of cocaine—one kilogram per ascertained shipment delivered by

Fitzgerald, Smith, or Grzybowski—and determined Fitzgerald was involved in conspiring to

distribute between 15 and 50 kilograms of cocaine. This resulted in a base offense level of 32.

With no criminal history, a two-level enhancement for a leadership role in the offense, and a two-

level enhancement for obstruction of justice for perjury, Fitzgerald’s advisory Guidelines range

was 188 to 235 months’ imprisonment. After considering his personal characteristics and the

circumstances of the offense, including the fact that Walker received a 57-month sentence, the

court rejected Fitzgerald’s request for a 10-year mandatory minimum sentence and imposed a

sentence of 188 months’ imprisonment for the conspiracy conviction, at the bottom end of the

Guidelines range, and ran the lesser sentences for his other convictions concurrently.

The court next sentenced Smith based on the same drug quantity finding, setting a base

offense level of 32, which, with no further adjustments and no criminal history, resulted in an

advisory Guidelines range of 121 to 151 months’ imprisonment. The court, considering the

relevant factors and noting Smith’s ability and willingness to secure employment, varied

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downward on his sentence, imposing 70 months’ imprisonment and running his other sentence

concurrently.

For Anderson’s sentencing, the court found that though all 38 known shipments of cocaine

were within the scope of the conspiracy, the evidence did not show that each shipment was

“reasonably foreseeable” to Anderson. The court indicated it was making a conservative estimate

(based on evidence showing that Walker made at least three two-kilogram deliveries to Anderson’s

home and that Anderson knew the scale of the drug trafficking was large enough that Walker owed

Fitzgerald as much as $31,000) to arrive at a quantity calculation between 5 and 15 kilograms of

cocaine. Anderson’s base offense level was 30; with a two-level enhancement for maintaining her

residence as a drug premise and a criminal history of II, the advisory Guidelines range was 135 to

168 months’ imprisonment. After considering the relevant factors and circumstances, including

potential disparity with Walker’s sentence, the court varied below the Guidelines range to impose

a 108-month term of imprisonment, with her other sentences running concurrently.

All three defendants timely appealed.

II. ANALYSIS

Fitzgerald presents the following issues on appeal: (1) the search warrant for his residence

was not valid; (2) evidence of the conspiracy and of his one count of distribution was insufficient;

(3) the court erred in sentencing by finding at least 15 kilograms of cocaine were involved in the

conspiracy; (4) the court erred by enhancing Fitzgerald’s sentence for obstruction of justice for

perjury; and (5) his sentence is substantively unreasonable. Anderson argues that the evidence

was insufficient to support her three convictions and that her sentence was substantively

unreasonable. Smith challenges the district court’s finding that at least 15 kilograms of cocaine

were involved in the conspiracy.

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A. Search Warrant (Fitzgerald)

We review de novo the legal conclusion that an affidavit supporting a search warrant was

sufficient to show probable cause. United States v. Brown, 828 F.3d 375, 381 (6th Cir. 2016).

“Given our de novo standard and the fact that our review focuses on the probable cause

determination of the magistrate judge in issuing the search warrant, we owe the district court’s

conclusion no particular deference.” Id. (citation and internal quotation marks omitted). When

the district court denies a motion to suppress, we review all evidence in the light most favorable

to the government. United States v. Galloway, 316 F.3d 624, 628 (6th Cir. 2003).

1. Probable Cause and the Nexus Requirement

The Fourth Amendment protects “[t]he right of the people to be secure . . . against

unreasonable searches and seizures” and provides that search warrants require “probable cause . . .

describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend.

IV. A magistrate judge reviewing a warrant application must make “a practical, common-sense

decision” whether probable cause exists under the “totality of the circumstances.” Illinois v. Gates,

462 U.S. 213, 230, 238 (1983). To demonstrate probable cause, an affidavit must “contain facts

that indicate a fair probability that evidence of a crime will be located on the premises of the

proposed search.” United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005) (citation and internal

quotation marks omitted); see also Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978) (“The

critical element in a reasonable search is not that the owner of the property is suspected of crime

but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized

are located on the property to which entry is sought.”). The search warrant affidavit must

specifically show “a nexus between the place to be searched and the evidence sought.” United

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States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (quoting United States v. Van Shutters, 163

F.3d 331, 336–37 (6th Cir. 1998)).

Whether a search constitutes an unconstitutional, unreasonable intrusion into a defendant’s

home is a fact-intensive inquiry, and in this circuit, “[m]ultiple cases on the nexus requirement

reveal our struggle to provide guidance for such a fact-bound legal determination.” Brown, 828

F.3d at 382. However, some general trends have emerged in cases where a defendant’s residence

is searched for evidence of drug dealing.

First, a defendant’s previous conviction for drug dealing is a factor frequently cited in

support of a determination of probable cause to search that defendant’s residence for evidence of

drug dealing. We have acknowledged that “[i]n the case of drug dealers, evidence is likely to be

found where the dealers live.” United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998) (citing

United States v. Lamon, 930 F.2d 1183, 1188 (7th Cir. 1991)). However, we also maintain that “a

defendant’s status as a drug dealer, standing alone, does not give rise to a fair probability that drugs

will be found in defendant’s home.” United States v. Berry, 565 F.3d 332, 339 (6th Cir. 2009)

(citing Frazier, 423 F.3d at 533).

Therefore, whether or not a defendant has previous drug dealing convictions (Fitzgerald

did not), an affidavit must provide evidence of recent or current drug activity, such as descriptions

of controlled buys or informants’ firsthand knowledge. See id. (“There is support for the

proposition that status as a drug dealer plus observation of drug activity near defendant’s home is

sufficient to establish probable cause to search the home.”) (citations omitted). In Berry, we

determined that there was probable cause to search a defendant’s residence where the defendant

was a known drug dealer and was arrested outside the residence with drugs on his person and in

his vehicle. Id. We also found probable cause in United States v. Miggins for a search warrant for

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co-defendants’ shared residence where one defendant had prior cocaine charges, that defendant

had various aliases and the residence’s address written on a note in his pocket, and both defendants

were participants in a controlled delivery of cocaine and admitted to being gang members. 302

F.3d 384, 393–94 (6th Cir. 2002). We similarly held that an affidavit established probable cause

where the affidavit stated that the defendant was likely a drug dealer, and, along with other

corroborating evidence about his drug purchases, that officers had recorded 38 conversations

between a reliable confidential informant and a middleman buying large quantities of drugs on the

defendant’s behalf. United States v. Gunter, 551 F.3d 472, 476–77, 480–82 (6th Cir. 2009).

Controlled buys of drugs at a defendant’s residence have been especially critical in

establishing a sufficient nexus between the residence and evidence sought by law enforcement.

See Jones, 159 F.3d at 974–75 (finding a sufficient nexus to search the defendant’s residence where

a confidential informant made drug purchases from the defendant, was at the defendant’s residence

during monitored drug transactions, and observed the defendant in possession of cocaine); United

States v. Ellison, 632 F.3d 347, 349 (6th Cir. 2011) (finding a sufficient nexus to search the

defendant’s residence where a confidential informant had “observed someone come out of [the

defendant’s] residence, engage in a drug transaction, and then return into the residence”).

But a defendant’s prior drug convictions and evidence of recent drug activity are not always

sufficient to find probable cause to search a defendant’s residence. In United States v. White, we

affirmed the district court’s determination of no probable cause to search a residence where the

affidavit stated that the officers received an anonymous tip that the defendant sold drugs at that

residence, officers conducted and recorded a controlled buy from the defendant in the driveway of

the residence, a police dog alerted to the odor of narcotics in the defendant’s vehicle, and the

defendant had numerous prior drug possession convictions. 874 F.3d 490, 494–95 (6th Cir. 2017).

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We have also held that an affidavit did not establish a defendant was a “known drug dealer” when

it merely stated that he had recently been arrested in a suspected drug deal and had one decade-old

drug conspiracy conviction. Brown, 828 F.3d at 378–80, 382–84. Without evidence of the

defendant’s involvement in an ongoing drug conspiracy and without any assertion that the

defendant used his home to distribute or store drugs, a “more direct connection was required” to

support a search warrant of Brown’s residence. Id. at 383. A nexus to a defendant’s residence

does not exist, moreover, if controlled buys occurred at the defendant’s prior residence, but not the

one officers are seeking to search. Frazier, 423 F.3d at 532. Thus, an affidavit supporting a

narcotics search warrant for a residence does not establish a nexus between a defendant’s recent

drug activity and his residence where the affiant did not provide direct knowledge that the

defendant has either sold drugs or used that particular residence for selling drugs. See, e.g., United

States v. Higgins, 557 F.3d 381, 390 (6th Cir. 2009) (finding insufficient nexus where the affidavit

provided “scant information” about a confidential informant’s reliability and police had little

corroborating evidence); United States v. McPhearson, 469 F.3d 518, 524–25 (6th Cir. 2006)

(finding insufficient nexus where the affidavit merely stated that defendant was arrested with drugs

on his person outside his residence); Carpenter, 360 F.3d at 593–95 (finding insufficient nexus

when the affidavit stated police observed marijuana plants near a residence but did not provide

further detail about the activities of the residents).

Fitzgerald asserts that the affidavit supporting the search warrant of his residence does not

establish his status as a drug dealer or a proper nexus between his alleged drug activity and that

address. The affidavit does not reference Fitzgerald’s criminal history; in fact, he has no prior

arrests, charges, or convictions. Nor does the affidavit assert that NOLETF officers or the

confidential informant ever observed Fitzgerald in possession of drugs, delivering drugs, or

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receiving drugs, despite a year of investigation. The affidavit also does not include any claims of

firsthand knowledge that Fitzgerald was engaged in the purchase or sale of drugs.

Even if the affidavit had established Fitzgerald was a known drug dealer, in a year of

listening to Fitzgerald’s phone conversations, tracking Walker’s location, and attempting to surveil

a delivery between Walker and Fitzgerald, NOLETF officers did not observe any drug activity at

or near Fitzgerald’s residence. By contrast, officers conducted video surveillance of Anderson’s

residence and witnessed Walker and Anderson handing off a Pelican case at that location. The

affidavit, though 62 pages long, mentions Fitzgerald’s address in only six paragraphs, primarily to

establish that Fitzgerald resided there. It contains only two potentially suspicious references to the

residence, neither of which “present sufficient facts demonstrating why the police officer expects

to find evidence in the residence rather than in some other place.” Brown, 828 F.3d at 382. First,

the affidavit discusses a tapped phone conversation in which Fitzgerald told Walker that he left an

item at his home. The affiant believed the forgotten item was the burner phone Fitzgerald used to

coordinate drug drop-offs with Walker. However, this oblique reference to the residence does not

demonstrate that drug-related activity occurred there. Cf. Jones, 159 F.3d at 974–75; Ellison, 632

F.3d at 349. Second, the district court may have misinterpreted one assertion in the affidavit when

the court denied Fitzgerald’s motion to suppress. The affidavit states twice that on February 20,

2015, officers observed Fitzgerald leave his workplace at FedEx, enter his personal vehicle, drive

to “several locations,” enter and exit those locations, and drive back to his residence, where officers

ceased surveillance. The court wrote that those paragraphs describe Fitzgerald returning to the

address “after a suspected drug drop.” (R. 49, PageID 255.) However, there is no information in

the affidavit supporting the conclusion that a suspected drug drop took place on February 20, 2015

at any location.

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Our precedent does not support the district court’s conclusion that the affiant’s “experience

that evidence of drug activity can often be found at the drug dealer’s residence, alone, is sufficient

to establish a nexus to search the residence.” (R. 49, PageID 259.) See Frazier, 423 F.3d at 533.

It is not enough for the affiant to assert his knowledge that drug traffickers often use their homes

as “stash houses.” There must be a separate “substantial basis for finding that the affidavit

established probable cause to believe that the evidence would be found at the place cited.” United

States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003) (quoting United States v. Davidson,

936 F.2d 856, 859 (6th Cir. 1991) (emphasis added). In each case cited by the district court in its

denial of Fitzgerald’s motion to suppress, the search warrant affidavit contained observable

evidence of defendant’s drug activity in addition to the affiant’s experience with drug

investigation. See United States v. Goward, 188 F. App’x 355 (6th Cir. 2006) (where defendants

also participated in a controlled buy of narcotics and in other drug transactions); Miggins, 302 F.3d

at 388, 394 (same); United States v. Blair, 214 F.3d 690, 696–98 (6th Cir. 2006) (where officers

first executed a warrant for financial records in the residence of owners of a prostitution ring based

on the affidavit of an IRS agent, observed drugs in plain view, then applied for a narcotics search

warrant). Our precedent is summarized in Frazier, which held that Miggins, Blair, and other cases

do not “support[] the proposition that the defendant’s status as a drug dealer, standing alone, gives

rise to a fair probability that drugs will be found in his home.” 423 F.3d at 533.

The affidavit does not assert that Fitzgerald had a criminal history, provide firsthand

evidence that he ever delivered or sold drugs, or demonstrate that Fitzgerald’s residence was used

as a “stash house” or played any role in the alleged drug conspiracy, other than the single reference

to Fitzgerald’s secondary cell phone. A magistrate judge must have a “substantial basis” for

finding probable cause exists, Gates, 462 U.S. at 238–39 (quoting Jones v. United States, 362 U.S.

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257, 271 (1960), and we must remain mindful that “‘[a]t the very core’ of the Fourth Amendment

‘stands the right of a man to retreat into his own home and there be free from unreasonable

governmental intrusion.’” Kyllo v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v.

United States, 365 U.S. 505, 511 (1961)). Accordingly, we hold that the nexus requirement was

not satisfied, and probable cause did not exist to issue the search warrant for Fitzgerald’s residence.

2. Good Faith Exception

The Government argues that even if the affidavit did not establish a sufficient nexus to

Fitzgerald’s residence, suppression of the evidence obtained in the search would be improper under

the “good faith” exception established in United States v. Leon, 468 U.S. 897 (1984). The

exclusionary rule precludes the use of evidence obtained in violation of the Fourth Amendment in

criminal proceedings against the victim of the illegal search or seizure, Illinois v. Krull, 480 U.S.

340, 347 (1987), but if the evidence was “obtained in objectively reasonable reliance” on the

invalidated search warrant, it should not be suppressed, Leon, 468 U.S. at 922.

The Leon good faith exception specifies that the affidavit must contain only a “minimally

sufficient nexus between the illegal activity and the place to be searched . . . .” Carpenter, 360

F.3d at 596; see also McPhearson, 469 F.3d at 526–27. That is a “less demanding showing than

the ‘substantial basis’ threshold required to prove the existence of probable cause.” Frazier, 423

F.3d at 536 (citing Carpenter, 360 F.3d at 595). An officer relying on a search warrant does not

act in objectively reasonable good faith when: (1) the magistrate was misled by information in the

affidavit that the affiant either knew was false or was reckless as to its falsity; (2) the magistrate

wholly abandoned her judicial role; (3) the warrant was so lacking in indicia of probable cause that

official belief in its existence is unreasonable; or (4) the officer’s reliance on the warrant was

otherwise not in good faith or objectively unreasonable, such as where the warrant is facially

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deficient. United States v. Laughton, 409 F.3d 744, 748 (6th Cir. 2005) (citing Leon, 468 U.S. at

914–23). The affidavit cannot be “bare bones” and merely “state[] suspicions, beliefs, or

conclusions, without providing some underlying factual circumstances regarding veracity,

reliability, and basis of knowledge.” McPhearson, 469 F.3d at 526 (citing United States v. Weaver,

99 F.3d 1372, 1378 (6th Cir. 1996)). “The relevant question is whether a reasonably well trained

officer would have known that the search was illegal despite the magistrate’s authorization.”

United States v. McCraven, 401 F.3d 693, 698 (6th Cir. 2005) (citation and internal quotation

marks omitted). Lack of good faith reliance on the affidavit may also exist “when evidence in the

affidavit connecting the crime to the residence is ‘so vague as to be conclusory or meaningless.’”

Frazier, 423 F.3d at 536 (quoting Carpenter, 360 F.3d at 596). The standard of reasonableness is

an objective one and “does not turn on the subjective good faith of individual officers.” Krull, 480

U.S. at 355 (citing Leon, 468 U.S. at 919 n.20).

Though the affidavit supporting the search warrant for Fitzgerald’s residence did not

provide a sufficient nexus between the place to be searched and the items sought, it was not a bare-

bones affidavit. The affidavit thoroughly described a year-long investigation into a wide-ranging

drug conspiracy. We found an officer could not reasonably rely on a “bare bones” search warrant

affidavit in Laughton, where the four-paragraph affidavit solely described one informant’s

controlled buy from the defendant, 409 F.3d at 748–51, and in Weaver, where the officer did not

attempt to corroborate an informant’s tip and the affidavit had “little firsthand information and no

personal observations” of the defendant, 99 F.3d at 1380. Similarly, when an affidavit alleged

merely that a defendant had drugs on his person when he was arrested outside his home, we found

that an officer could not reasonably believe there was probable cause to search the residence for

evidence of drug dealing on that arrest alone. McPhearson, 469 F.3d at 526–27. In contrast, here,

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the 62-page affidavit contains evidence of Fitzgerald’s involvement in ongoing drug activity based

on confidential informant reports and a year of wiretapped conversations and other surveillance of

suspected co-conspirators. For example, the confidential informant claimed to speak regularly

with Fitzgerald’s half-sister, co-defendant Anderson, about the conspiracy and specifically

described Fitzgerald’s role as the FedEx deliverer. Magistrate judges authorized wiretaps on

Fitzgerald’s and Walker’s cell phones and a tracker on Walker’s vehicle. Experienced officers

interpreted the suspects’ cryptic phone and text conversations to refer to drug deliveries and

payments. On days tapped phone calls led officers to believe Fitzgerald and Walker planned to

meet, surveillance of Anderson’s residence showed Walker arriving with Pelican cases.

There is, moreover, no evidence in the record that officers did not rely on this warrant in

good faith or that they applied for the warrant knowing the information within it was false.

Similarly, we have no evidence that the magistrate “wholly abandoned [her] judicial role.” Leon,

468 U.S. at 923. The warrant is not “so lacking in indicia of probable cause that a belief in its

existence is objectively unreasonable.” Laughton, 409 F.3d at 748. In light of the entire record,

we do not find it objectively unreasonable for an officer to believe that the affidavit established

probable cause to search Fitzgerald’s residence. We therefore conclude that the good faith

exception applies and affirm the district court’s denial of Fitzgerald’s motion to suppress.

B. Sufficiency of the Evidence (Fitzgerald and Anderson)

“We review de novo the district court’s denial of a motion for acquittal based on sufficiency

of the evidence.” United States v. Blanchard, 618 F.3d 562, 574 (6th Cir. 2010) (citation omitted).

When reviewing an insufficient evidence claim on appeal from a jury verdict, we ask “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.” United States

-17- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

v. Washington, 715 F.3d 975, 979 (6th Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). “Circumstantial evidence alone is sufficient to sustain a conviction[,] and such evidence

need not remove every reasonable hypothesis except that of guilt.” United States v. Barnett, 398

F.3d 516, 522 (6th Cir. 2005) (quoting United States v. Spearman, 186 F.3d 743, 745 (6th Cir.

1999). Moreover, “we do not weigh the evidence, assess the credibility of the witnesses, or

substitute our judgment for that of the jury.” United States v. Wright, 16 F.3d 1429, 1440 (6th Cir.

1994). A defendant bears “a very heavy burden” to show the government’s evidence is

insufficient. United States v. Kernell, 667 F.3d 746, 756 (6th Cir. 2012) (quoting United States v.

Jones, 641 F.3d 706, 710 (6th Cir. 2011).

1. Fitzgerald

Fitzgerald challenges the sufficiency of the evidence for two convictions: Count One,

conspiring to possess with intent to distribute five kilograms or more of cocaine, in violation of

21 U.S.C. §§ 846, 841(a)(1), and 841 (b)(1)(a); and Count Two, knowingly and intentionally

distributing approximately one kilogram of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(B).

a. Conspiracy

“To sustain a conviction for conspiracy under 21 U.S.C. § 846, the government must have

proved: (1) an agreement to violate drug laws, in this case 21 U.S.C. § 841; (2) knowledge and

intent to join the conspiracy; and (3) participation in the conspiracy.” United States v. Sliwo,

620 F.3d 630, 633 (6th Cir. 2010) (citation omitted). An agreement can be established through

circumstantial evidence or a “tacit or material understanding among parties to a conspiracy.”

United States v. Beals, 698 F.3d 248, 259 (6th Cir. 2012). “Testimony by co-conspirators alone

can be sufficient to prove the existence of a conspiracy.” United States v. Soto, 794 F.3d 635, 658

-18- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

(6th Cir. 2015) (citation omitted); see also Spearman, 186 F.3d at 746. But a co-conspirator’s

statements about a defendant “should be viewed with ‘special suspicion’” due to the co-

conspirator’s motivations. United States v. Hunt, 487 F.3d 347, 352 (6th Cir. 2007) (quoting

United States v. Gomez-Lemos, 939 F.2d 326, 330 (6th Cir.1991)). The finder of fact should not

draw unreasonable inferences, United States v. Abner, 35 F.3d 251, 255 (6th Cir. 1994), and should

recall the Supreme Court’s “long-standing admonition that ‘charges of conspiracy are not to be

made out by piling inference upon inference . . . .’” United States v. Swafford, 512 F.3d 833, 843

(6th Cir. 2008) (quoting Direct Sales Co. v. United States, 319 U.S. 703, 711 (1943)). Ultimately,

“[a]ttacks on witness credibility are simple challenges to the quality of the government’s evidence

and not the sufficiency of the evidence.” United States v. Sanchez, 928 F.2d 1450, 1457 (6th Cir.

1991), (quoting United States v. Adamo, 742 F.2d 927, 932 (6th Cir. 1984)), abrogated on other

grounds by Buford v. United States, 532 U.S. 59 (2001).

Fitzgerald argues that Walker’s self-interested statements about the defendants’ roles in

the conspiracy are unreliable, and he challenges the sufficiency of the circumstantial evidence

corroborating Walker’s testimony, particularly the lack of proof that Fitzgerald knew the FedEx

shipments contained cocaine. While Fitzgerald is correct that authorities never seized any drugs,

witnessed hand-to-hand sales, or obtained an admission from Fitzgerald, Walker’s testimony is

sufficient to support Fitzgerald’s conviction. See Soto, 794 F.3d at 658. Walker testified that when

he first approached Fitzgerald about shipping marijuana through FedEx, Fitzgerald willingly

helped Walker use the best methods to label and package the shipments to evade detection, such

as by using a return address based in a state not known as a drug-source state. According to

Walker, when he lost his source of marijuana in Arizona, he told Fitzgerald he was “going to start

playing with the other work” and began paying Fitzgerald $2,000 per case delivered, a significant

-19- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

change from his previous payment of $50 per pound of marijuana. Walker also testified that

Fitzgerald helped him remove cocaine-trafficking paraphernalia from the apartment leased in

Fitzgerald’s name in Aurora, Ohio where Walker’s cousin attempted suicide. Finally, Walker

claimed that he sent shipments nearly every week for at least one year, usually containing one to

two kilograms of cocaine per case, and that he still owed Fitzgerald tens of thousands of dollars.

That testimony permits the inference that Fitzgerald knew at least five kilograms of cocaine were

involved in the conspiracy.

Moreover, at trial, the jury saw substantial corroborating evidence. First, a FedEx security

investigator and NOLETF officers presented FedEx records for a business account under the false

name Elizabeth Pankratz, of the fictional North Dakota company Praxair Medical Supplies. That

business account sent 38 packages from FedEx stores in Southern California to various locations

in Northern Ohio, matching Walker’s testimony that he created and used the Elizabeth Pankratz

account to send packages from his cocaine suppliers in Los Angeles. Second, NOLETF’s

wiretapped conversations and vehicle-tracking information show Walker and Fitzgerald deciding

where to meet to hand off drug shipments at times and locations corresponding to delivery times

and locations in the FedEx records. Third, another FedEx employee, Grzybowski—a name and

person Walker denied knowing—testified that Fitzgerald gave her a cell phone and paid her

hundreds of dollars to run detailed scans of Walker’s packages and, on two occasions, to pull

packages before delivery. Fourth, the FedEx records showed that of the 38 known packages,

Fitzgerald personally delivered seven packages, and various testimony showed that he paid Smith

and Grzybowski to deliver or pull the remaining 31 packages. Finally, during the search of

Fitzgerald’s residence and storage locker, officers found Pelican cases, suitcases with torn

backings, and over $20,000 in cash. Though Fitzgerald claims that the cash and his regular large

-20- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

bank deposits were legally earned through his roles managing and owning bars, the Government

“need not remove every reasonable hypothesis except that of guilt” to defeat a sufficiency-of-the-

evidence challenge. Barnett, 398 F.3d at 522.

This testimony and evidence could lead a rational juror to conclude that Fitzgerald entered

an agreement to ship drugs, participated in shipping drugs, knew those drugs were cocaine, and

knew that he was shipping at least five kilograms of cocaine during the conspiracy. Thus,

sufficient evidence established an agreement to violate drug laws, knowledge and intent to join the

conspiracy, and participation in the conspiracy. See Sliwo, 620 F.3d at 633. We affirm Fitzgerald’s

conviction on Count One.

b. Cocaine Distribution

To convict for cocaine distribution under 21 U.S.C. § 841(a), the government must prove

that a defendant: (1) knowingly or intentionally distributed cocaine, and (2) at the time of such

distribution, the defendant knew that the substance was cocaine. United States v. Colon, 268 F.3d

367, 376 (6th Cir. 2001).

Fitzgerald attacks his distribution conviction on the same grounds as the conspiracy

conviction, claiming Walker was not a credible source and the Government did not adequately

corroborate Walker’s testimony. Again, his challenge fails because “the quality of the evidence is

a factual matter for the jury to evaluate.” United States v. Gibbs, 182 F.3d 408, 424 (6th Cir.

1999). Walker testified that on January 31, 2015, Fitzgerald gave him one Pelican case containing

one to two kilograms of cocaine. Evidence shows Fitzgerald knew that the shipments contained

cocaine, not marijuana. Walker also helped decode his recorded phone conversations and texts

with Fitzgerald discussing where to meet that day along Fitzgerald’s delivery route. Though police

did not witness the transaction, FedEx records show Fitzgerald delivered a package from the

-21- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

Elizabeth Pankratz account that morning, and location tracking of Walker’s vehicle shows Walker

driving to the agreed-upon spot at the time of package delivery. The evidence in the record is

sufficient for a rational juror to conclude that Fitzgerald knowingly distributed a substance he knew

to be cocaine. We affirm Fitzgerald’s conviction on Count Two.

2. Anderson

Anderson argues that insufficient evidence supported each of her three convictions: Count

One, conspiring to possess with intent to distribute five kilograms or more of cocaine, in violation

of 21 U.S.C. §§ 846, 841(a)(1), and 841 (b)(1)(a); Count Four, managing premises for the purpose

of manufacturing, storing, distributing, and using cocaine in violation of 21 U.S.C. § 856(a)(2);

and Count Six, using a telephone to facilitate the conspiracy in violation of 21 U.S.C. § 843(b).

Anderson, like Fitzgerald, bases her challenge on Walker’s reliability, but that is a factual

and credibility determination entrusted to the jury. See Washington, 715 F.3d at 981. Anderson

argues that no cocaine or money was found through surveillance or search of her home, and

circumstantial evidence is not enough to show she knowingly participated in a conspiracy to

distribute cocaine. She is incorrect; circumstantial evidence can be enough. See Barnett, 398 F.3d

at 522. Walker, moreover, testified that he brought cocaine to Anderson’s house and concealed

drugs and money there. Officers observed Walker entering Anderson’s house with a Pelican case

on three occasions. Walker also testified that Anderson would follow Walker in her car to help

keep law enforcement officers from pulling Walker over with drugs in his car. A search of

Anderson’s residence found Pelican cases and digital scales, corroborating Walker’s account that

he used Anderson’s home to weigh and divide cocaine into smaller quantities. Tapped phone

conversations also show Anderson knew Walker regularly used her residence and that he owed

-22- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

Fitzgerald up to $31,000, a sum indicating the scope of the cocaine sales. The evidence is sufficient

to show Anderson knew of the conspiracy, intended to join the conspiracy, and participated in the

conspiracy. See Sliwo, 620 F.3d at 633. We affirm Anderson’s conviction on Count One.

b. Maintaining Drug Premises

To establish a violation of 21 U.S.C. § 856(a)(2), the government must prove that a

defendant did “manage or control any place” and “knowingly and intentionally rent, lease, profit

from, or make available for use, with or without compensation, the place for the purpose of

unlawfully manufacturing, storing, distributing, or using a controlled substance.” 21 U.S.C.

§ 856(a)(2) (2012).

The Government presented evidence that Anderson owned and occupied the residence.

Her $1,000 payments from Walker and recorded conversations with Fitzgerald and Walker

indicate her knowledge that she was aiding the distribution of cocaine. Walker testified that he

broke kilograms of cocaine into smaller quantities for distribution at Anderson’s house, and the

search of the residence found scales that could be used for weighing drugs. Sufficient evidence

exists for Anderson’s conviction under § 846(a)(2). See United States v. Parrett, 552 F. App’x

462, 464 (6th Cir. 2014). We therefore affirm Anderson’s conviction on Count Four.

c. Using a Telephone to Facilitate a Federal Narcotics Crime

A conviction under 21 U.S.C. § 843(b) requires the government to establish that the

defendant “(1) knowingly and intentionally used a communications facility (2) to facilitate the

commission of a [federal] narcotics crime.” United States v. Burns, 298 F.3d 523, 538 (6th Cir.

2002) (internal citations omitted).

According to information obtained through NOLETF surveillance, Walker called

Anderson at 9:26 a.m. on January 31, 2015. She picked up the phone, and he told her he was at

-23- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

her house. Walker confirmed that on that date, he brought a Pelican case of cocaine to Anderson’s

house and divided the drugs into smaller quantities for distribution; the jury was entitled to find

his testimony reliable. See Sanchez, 928 F.2d at 1457. Sufficient evidence thus existed in the

record for the jury to find Anderson guilty of knowingly and intentionally using a communications

facility to facilitate the drug conspiracy. We affirm Anderson’s conviction on Count Six.

C. Determination of Drug Quantity (Fitzgerald, Smith, and Anderson)

Fitzgerald and Smith challenge the district court’s finding for sentencing purposes that their

roles in the conspiracy involved between 15 and 50 kilograms of cocaine. Anderson also

challenges the district court’s finding that her role in the conspiracy involved between 5 and 15

kilograms of cocaine.

We review a district court’s factual finding of drug quantity for clear error. United States

v. Jeross, 521 F.3d 562, 570 (6th Cir.2008).

1. Fitzgerald and Smith

Sentencing in drug crimes requires the district court to determine the quantity of drugs

attributable to the defendant to establish a base offense level. USSG § 2D1.1(c). Under the

Guidelines, when a defendant is part of a “jointly undertaken criminal activity” such as a drug

conspiracy, “the defendant is accountable . . . for all quantities of contraband with which he was

directly involved and . . . [that] were reasonably foreseeable in connection with that criminal

activity.” Id. § 1B1.3 comment. (n.3).

If the exact amount of drugs involved in a conviction cannot be determined, “an estimate

will suffice, but . . . a preponderance of the evidence must support the estimate.” Jeross, 521 F.3d

at 570 (quoting United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)). The estimate may

be based on physical evidence or on testimonial evidence, id.; United States v. Swanberg, 370 F.3d

-24- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

622, 625 (6th Cir. 2004), but that evidence “must have a minimal level of reliability beyond mere

allegation,” United States v. Sandridge, 385 F.3d 1032, 1037 (6th Cir. 2004) (quoting United States

v. Owusu, 199 F.3d 329, 338 (6th Cir. 2000)). Corroborating evidence can provide an “indicia of

reliability” to co-conspirator testimony. Hunt, 487 F.3d at 352 (citing USSG § 6A1.3(a)). In

making its estimate, the court should “err on the side of caution,” Sandridge, 385 F.3d at 1037

(quoting Owusu, 199 F.3d at 338), and must “conclude the defendant is more likely than not

actually responsible for a quantity greater than or equal to the quantity for which the defendant is

being held responsible,” Jeross, 521 F.3d at 570 (quoting Walton, 908 F.2d at 1302).

The district court relied on Walker’s testimony and the FedEx records to calculate the

amount of drugs involved in the conspiracy. Walker testified that each package he shipped from

California via FedEx usually contained two kilograms of cocaine, though he acknowledged he sent

cases with no drugs in them. He claimed he sent the drug packages almost every week for at least

a year from three or four different accounts, though only the Elizabeth Pankratz account was

identified. The FedEx records for that account show that Walker sent 38 packages from California,

all scanned by Fitzgerald, Smith, or Grzybowski. The court properly used caution by assuming

each shipment contained one kilogram of cocaine, not two, therefore calculating that at least 38

kilograms of cocaine were shipped in the 38 containers. The resultant drug quantity for sentencing,

between 15 and 50 kilograms of cocaine, is not clearly erroneous based on the testimonial and

corroborating evidence in the record.

Fitzgerald claims that Walker used “puffery” and exaggerated the quantities of cocaine in

each container. It is true that no FedEx security officers or law enforcement officers were able to

seize a container and prove that the containers contained cocaine. The district court’s

determination of the credibility of a co-conspirator’s testimony, however, receives “great

-25- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

deference,” United States v. Esteppe, 483 F.3d 447, 452 (6th Cir. 2007), and Walker’s testimony

and the FedEx records indicate Fitzgerald and Smith were involved in a conspiracy to ship more

than 38 kilograms of cocaine. The district court need only estimate the quantity involved based

on the “preponderance of the evidence.” Walton, 908 F.2d at 1302 (6th Cir. 1990). In finding that

at least 15 kilograms of cocaine were involved, the court did not commit clear error, and it did not

err in calculating Fitzgerald’s and Smith’s Guidelines ranges accordingly.

Anderson also challenges the district court’s determination of the quantity of drugs

attributable to her role in the conspiracy. The court found insufficient evidence that all 38

shipments were reasonably foreseeable to Anderson and looked instead at times when Walker

brought cocaine shipments to Anderson’s house. Walker’s testimony and police surveillance

described three such instances, and Walker testified that each case contained two kilograms of

cocaine. This evidence is sufficient to show Walker brought at least six kilograms of cocaine to

Walker’s house. The court also noted that tapped phone conversations between Anderson and

Fitzgerald indicate that she knew the conspiracy involved large sums of money and large quantities

of drugs. Though the court agreed with the Government that Anderson could have reasonably

foreseen that over fifteen kilograms of cocaine were involved in the conspiracy, the court instead

elected to find that the drug quantity was five to fifteen kilograms. The calculation is not, as

Anderson alleges, “arbitrary and unreasonable.” We do not find clear error.

D. Obstruction of Justice (Fitzgerald)

We review a district court’s decision to impose an obstruction of justice adjustment under

Guideline § 3C1.1 in three steps: (1) reviewing the district court’s factual findings for clear error;

(2) reviewing the district court’s conclusion that a given set of facts constitutes obstruction of

-26- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

justice de novo as a mixed question of law and fact; and (3) reviewing the two-level mandatory

adjustment for obstruction of justice de novo. United States v. Middleton, 246 F.3d 825, 846 (6th

Cir. 2001). “In reviewing the § 3C1.1 enhancement, we evaluate [the] defendant’s testimony and

statements in a light most favorable to the defendant.” United States v. Thomas, 272 F. App’x

479, 487 (6th Cir. 2008) (quoting United States v. Head, 927 F.2d 1361, 1372 (6th Cir. 1991)).

1. Obstruction of Justice

To impose an obstruction of justice enhancement for perjury, the district court must find

“that the defendant testified falsely ‘concerning a material matter with the willful intent to provide

false testimony, rather than as a result of confusion, mistake, or faulty memory.’” United States

v. Chance, 306 F.3d 356, 390 (6th Cir. 2002) (quoting United States v. Dunnigan, 507 U.S. 87, 94

(1993)). The notes to the Guidelines provide that § 3C1.1 “is not intended to punish a defendant

for the exercise of a constitutional right” and that “not all inaccurate testimony or statements

necessarily reflect a willful attempt to obstruct justice.” United States v. Bazazpour, 690 F.3d 796,

806 (6th Cir. 2012) (citing USSG § 3C1.1, comment. (n.2)). Thus, the court must identify “those

particular portions of the defendant’s testimony that it considers to be perjurious,” United States

v. Mise, 240 F.3d 527, 531 (6th Cir. 2001) (quoting Dunnigan, 507 U.S. at 94), and either make

specific findings as to each element of perjury or make a finding that “encompasses all of the

factual predicates for a finding of perjury.” Id. (citation omitted).

The district court made each required finding by identifying a specific portion of

Fitzgerald’s testimony as false and noting: “The testimony did go to a material matter that related

to Count 2 of the indictment. It was made under oath here in court. And the Court finds that there

was a willful intent to provide false testimony regarding the matter.” (R. 160, PageID 2758-59.)

In the relevant testimony, Fitzgerald repeatedly denies meeting Walker on January 31, 2015, even

-27- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

when the Government confronted Fitzgerald with phone calls between Fitzgerald and Walker

planning a meeting and with Walker’s testimony that they did meet to hand off a package of

cocaine. While it would have been preferable for the district court to better describe why the

perjurious portion of Fitzgerald’s testimony was material and why the court believed his testimony

was willful, the court did not clearly err in so finding. Fitzgerald’s testimony contradicted his co-

conspirator’s testimony and corroborating evidence, and the record supports the finding that

Fitzgerald committed perjury. We affirm Fitzgerald’s two-level enhancement for obstruction of

justice.

E. Substantive Unreasonableness (Fitzgerald and Anderson)

We review sentences imposed by a district court for abuse of discretion. Gall v. United

States, 552 U.S. 38, 51 (2007). A district court abuses its discretion if it imposes a sentence that

is procedurally or substantively unreasonable. United States v. Walters, 775 F.3d 778, 781 (6th

Cir. 2015); United States v. Massey, 663 F.3d 852, 856 (6th Cir. 2011).

1. Sentencing Disparity

A sentence is 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.

Brinley, 684 F.3d 629, 636 (6th Cir. 2012) (citation omitted). In reviewing for substantive

reasonableness, this court evaluates “the totality of the circumstances, including the extent of any

variance from the Guidelines range.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)

(quoting Gall, 552 U.S. at 51). “A sentence that falls within a properly calculated guideline range

is afforded a rebuttable presumption of reasonableness, and it is incumbent upon the defendant to

-28- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

demonstrate that his sentence is unreasonable.” United States v. Evers, 669 F.3d 645, 661 (6th

Cir. 2012) (quoting United States v. Brogdon, 503 F.3d 555, 559 (6th Cir. 2007)).

Under 18 U.S.C. § 3553(a)(6), the district court can consider “national disparities among

the many defendants with similar criminal backgrounds convicted of similar conduct,” but the

court generally is not required to consider disparities between individual co-defendants’ sentences.

United States v. Simmons, 501 F.3d 620, 623 (6th Cir. 2007). A district court, however, “may

exercise his or her discretion and determine a defendant’s sentence in light of a co-defendant’s

sentence.” Id. at 624 (citing United States v. Nelson, 918 F.2d 1268, 1272–73 (6th Cir. 1990)).

While Walker was not a co-defendant in their trial, Fitzgerald and Anderson claim that

their sentences are substantively unreasonable because they are longer than that of Walker, the

leader of the conspiracy. In sentencing all three defendants, the district court used as its “starting

point and the initial benchmark” the correct calculation of the applicable Guidelines range, Gall,

552 U.S. at 49, then specifically addressed why Walker’s sentence was shorter, at 57 months, than

either Fitzgerald’s or Anderson’s. The court noted that Walker received a three-level reduction

for acceptance of responsibility and additional reductions for cooperation, though he received a

leadership enhancement. Fitzgerald received two enhancements: one for obstruction of justice and

another for his supervisory role in the conspiracy. Anderson received one enhancement for

maintaining a drug premise. The court specifically emphasized each defendant’s individual

culpability, particularly Fitzgerald’s as the critical conspirator who provided access to FedEx and

permitted the conspiracy to go undetected for years. The court took each defendant’s personal

characteristics and § 3553(a) factors into account and sentenced Anderson to a below-Guidelines

sentence of 108 months’ imprisonment and Fitzgerald to a sentence at the bottom of the Guidelines

range of 188 months’ imprisonment. Fitzgerald has not shown that his within-Guidelines sentence

-29- Nos. 17-3699, 17-3714, 17-3718 United States v. Christopher Fitzgerald, et al.

is unreasonable or that the district court abused its discretion. The burden for Anderson to show

unreasonableness is “even more demanding,” as her sentence was below the properly calculated

Guidelines range, United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008), and she likewise has

not met it. While we acknowledge Fitzgerald’s and Anderson’s concerns regarding fairness and

justice, we cannot conclude that their sentences are unreasonable. We therefore affirm Fitzgerald’s

and Anderson’s sentences.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of Fitzgerald’s motion to

suppress and AFFIRM each defendant’s convictions and sentences.

-30-