United States v. Richard Confer

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 15, 2025
• Docket: 24-3589
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0466n.06

Case No. 24-3589

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 15, 2025 KELLY L. STEPHENS, Clerk

) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE NORTHERN RICHARD CONFER, ) DISTRICT OF OHIO Defendant-Appellant. ) ) OPINION

Before: COLE, KETHLEDGE, and NALBANDIAN, Circuit Judges

NALBANDIAN, Circuit Judge. Defendant Richard Confer pleaded guilty to two counts

of distributing meth. His recommended sentencing range was 108–135 months. The district court

sentenced Confer to 97 months, shaving nearly a year off the recommended range’s bottom-end.

Confer appeals, arguing that his sentence is both procedurally and substantively unreasonable. We

disagree, so we affirm.

I.

During the summer of 2023, county police caught Defendant Richard Confer dealing drugs

three times. The first two times, the officers enlisted a confidential informant to pose as a buyer.

On both occasions, Confer invited the informant to his home to make the sale. The first buy, in

April, yielded a mixture of 96% purity that contained about 27 grams of meth. The second

transaction, in May, netted 28 grams of 100% pure meth. Confer used a scale to parcel out both No. 24-3589, United States v. Confer

sales from a “gallon-size Ziploc bag” of meth he kept under his chair. R.35, Sent. Tr., p.10, PageID

219.

The third bust happened more organically. Instead of using the confidential informant,

officers surveilled Confer’s residence to watch for real-life drug sales. They didn’t have to wait

long. In July, officers observed a man arrive at Confer’s house and leave just eight minutes later.

The visitor swerved as he drove off, so the officers pulled him over. After waiving his Miranda

rights, the visitor admitted that he was a buyer, and that Confer had just sold him some meth. The

meth seized from the buyer weighed about 6.6 grams, though its purity isn’t clear from the record.

Following those incidents, the government filed a criminal complaint seeking a warrant for

Confer’s arrest. The officers executed that warrant, and a federal grand jury returned a two-count

indictment charging Confer for violating 21 U.S.C. § 841(a)(1) and (b)(1)(B) during each

controlled buy. The indictment didn’t charge Confer for the third drug bust.

Confer pleaded guilty to both counts. Upon accepting his guilty plea, the district court

referred the matter to pretrial services for the preparation of a presentence investigation report

(PSR). The PSR calculated Confer’s recommended sentencing range under the United States

Sentencing Guidelines (U.S.S.G.), finding an offense level of 29 and a criminal history category

of III. Those two variables correspond to a recommended sentencing range of 108–135 months’

imprisonment.

Confer objected to the PSR’s Guidelines calculation. Specifically, he questioned the PSR’s

application of the two-level “stash-house” enhancement from U.S.S.G. § 2D1.1(b)(12), which

applies when a defendant “maintained a premises for the purpose of manufacturing or distributing

a controlled substance.” In Confer’s view, selling drugs out of his home “was an incidental or

collateral use” of the property. R.30-1, Objection, p.1, PageID 188. And because a relevant

2 No. 24-3589, United States v. Confer

Guidelines application note says that distributing a controlled substance “must be one of the

defendant’s primary or principal uses” of the property, rather than an “incidental or collateral

use[],” the PSR shouldn’t have applied the enhancement. Id. (citing U.S.S.G. § 2D1.1(b)(12) cmt.

n.17).

At the sentencing hearing, the district court overruled Confer’s objection and adopted the

PSR’s Guidelines calculation without modification. It ruled that Confer’s conduct cleared the

primary-use requirement’s “low bar,” as described by Sixth Circuit caselaw. R.35, Sent. Tr.,

pp.14–15, PageID 223–24; United States v. Leggett, 800 F. App’x 378, 381 (6th Cir. 2020).

Specifically, his bulk storage of meth in a gallon-size Ziploc and use of a digital scale to parcel out

smaller, individually salable amounts warranted the enhancement.

Having established the Guidelines calculation on the record, the district court considered

the 18 U.S.C. § 3553 sentencing factors. One of those factors requires the sentencing court

to account for “the need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Citing

that provision, Confer took another stab at a lower sentence by arguing that the Guidelines’

heavy-handed approach to “pure” meth—that is, any mixture that’s at least 80% meth, U.S.S.G.

§ 2D1.1(c) n.(C)—would result in a sentencing disparity. As far as we can tell, his argument boils

down to the policy-based assertion that pure meth isn’t meaningfully worse (from a culpability

standpoint) than mixed meth, so treating the former more harshly constitutes an unwarranted

disparity. The district court rejected that argument, but only halfway. It declined to depart from

the Guidelines’ differential treatment of pure and mixed meth, but it agreed that the Guidelines

range might lead to a disparate sentence for a different reason: statistics. At the hearing, the

probation officer informed the district court that other defendants sentenced under the same

3 No. 24-3589, United States v. Confer

Guidelines provision, with the same offense level and criminal history category, received a median

sentence of 84 months and an average sentence of 86 months. Taking those data points into

account, along with the other § 3553 factors, the district court sentenced Confer to a substantially

below-Guidelines term of 97 months’ imprisonment.

Confer appealed. He now argues that his sentence is procedurally and substantively

unreasonable1 for the same reasons he raised before the district court: (1) the stash-house

enhancement shouldn’t apply to his conduct, and (2) the Guidelines’ “antiquated” treatment of

pure methamphetamine led to a disparate outcome in his case. Appellant Br., p.4. The government

counters that the district court applied the stash-house enhancement in line with well-settled

caselaw, and that the district court adequately considered the risk of disparate sentencing when it

conducted the multi-factor balancing required by § 3553. The government has the better argument,

so we affirm.

II.

We review a district court’s sentencing decision for reasonableness. This review has both

a procedural and a substantive component. United States v. Curry, 536 F.3d 571, 573 (6th Cir.

2008). Sentences are procedurally reasonable “when district courts ‘properly calculate the

guidelines range, treat the guidelines as advisory, consider the § 3553(a) factors and adequately

explain the chosen sentence.’” United States v. Allen, 93 F.4th 350, 355 (6th Cir. 2024) (quoting

United States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008)). And they’re substantively

1 Confer doesn’t specify which of his arguments are procedural or substantive. Procedural arguments include claims that the district court improperly calculated the Guidelines’ recommended sentencing range. See United States v. Allen, 93 F.4th 350, 355 (6th Cir. 2024). And substantive arguments include those that take issue with the district court’s balancing under the § 3553(a) factors in determining the defendant’s actual sentence. Id. at 359. Because Confer’s first assignment of error tracks the former, and his second tracks the latter, we agree with the district court that one is procedural and the other is substantive. 4 No. 24-3589, United States v. Confer

reasonable if “the district court could reasonably choose to impose it,” even if the reviewing court

would select a different sentence. Id. at 359; see also Gall v. United States, 552 U.S. 38, 51–52

(2007). Alternatively, a sentence is substantively unreasonable “only 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.’” Allen,

93 F.4th at 359 (quoting United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008)). We

presume reasonableness when a sentence falls within the correctly-calculated Guidelines range.

Id. And when, as here, the district court imposes a below-Guidelines sentence, that presumption

is even stronger. Curry, 536 F.3d at 573–74; see also United States v. Greco, 734 F.3d 441,

450 (6th Cir. 2013).

III.

Confer raises two arguments on appeal. First, he claims that the district court erred in

applying the Guidelines’ stash-house enhancement, rendering his sentence procedurally

unreasonable. Second, he says that the district court erred by failing to consider sentencing

disparities that result from the Guidelines’ harsher treatment of pure meth, making his sentence

substantively unreasonable. Neither argument persuades.

A.

Start with the procedural point. Confer argues that the district court calculated his

Guidelines range incorrectly by using the stash-house enhancement to increase his offense level

by two points. The enhancement applies to a defendant who “(1) knowingly (2) opens or maintains

any place (3) for the purpose of manufacturing or distributing a controlled substance.” United

States v. Bell, 766 F.3d 634, 636–37 (6th Cir. 2014) (internal quotation marks omitted). The third

element—the only one that Confer contests—requires that “one of the ‘primary or principal uses

5 No. 24-3589, United States v. Confer

for the premises’ was manufacturing or distributing drugs.” United States v. Lake, No. 23-1454,

2024 WL 4977141, at *6 (6th Cir. Dec. 4, 2024) (quoting U.S.S.G. § 2D1.1(b)(12) cmt. n.17). But

as this Court has explained elsewhere, “[d]rug manufacture or distribution need not be the primary

purpose of a residence for the enhancement to apply, only a primary purpose.” United States

v. Allen, No. 21-3900, 2022 WL 7980905, at *2 (6th Cir. Oct. 14, 2022) (emphasis in original)

(citing Bell, 766 F.3d at 638). This is a “relatively low bar.” Leggett, 800 F. App’x at 381.

So “[d]rug storage on the property and transactions on the property will usually suffice.” Bell,

766 F.3d at 638. The enhancement applies if the home “played a significant part” in Confer’s drug

distribution. United States v. Johnson, 737 F.3d 444, 449 (6th Cir. 2013).

Confer’s home did just that. He doesn’t dispute that he “had a gallon-size Ziploc bag

underneath his chair,” from which he parceled out smaller amounts for individual transactions

using a scale he had at the ready. R.35, Sent. Tr., p.10, PageID 219. That covers both drug storage

and drug transactions. And those two features are generally sufficient to apply the stash-house

enhancement. See Bell, 766 F.3d at 638; see also Leggett, 800 F. App’x at 381 (affirming

application of the stash-house enhancement where officers found a scale and bulk amounts of

drugs on the property).

The only argument Confer raises to the contrary is that he primarily used his home to watch

TV and relax. That’s all well and good. But a defendant “can maintain a premises for more than

one purpose.” Bell, 766 F.3d at 638. So even if one of Confer’s primary uses of his home was

residential, the undisputed evidence supports a finding that another primary use was meth

distribution. For that reason, the district court didn’t err by increasing Confer’s offense level by

two points under U.S.S.G. § 2D1.1(b)(12).

6 No. 24-3589, United States v. Confer

B.

Now for Confer’s substantive argument. He claims that the district court erred by rejecting

his argument that the Guidelines’ disparate treatment of pure and mixed meth creates “unwarranted

sentencing disparities between methamphetamine and other drugs.” Appellant Br., p.8. It’s true

that the Guidelines assign longer sentences to offenses involving pure meth than mixed meth. See

U.S.S.G. § 2D1.1(c) n.(C). Indeed, the Guidelines’ Drug Quantity Table treats pure meth ten times

more harshly: Crimes involving two grams of pure meth carry the same base offense level as those

involving twenty grams of mixed meth, and so on. See generally id. Confer asserts that the

differential treatment is “antiquated and no longer useful.” Appellant Br., pp.4, 9–10. The district

court considered Confer’s substantive critique on the record and rejected it, finding that “whether

it’s pure . . . the fact remains that methamphetamine, generally speaking, is a dangerous drug, the

use of which can hurt the individual using it as well as the family and our community.” R.35,

Sent. Tr., pp.27–28, PageID 236–37.

Confer’s policy argument doesn’t overcome the heightened presumption of reasonableness

that applies to his below-Guidelines sentence. Although district courts “may vary from the

Guidelines for policy reasons alone,” they need not do so “whenever defendants assert a policy

critique.” Allen, 93 F.4th at 359 (emphasis added). And apart from its rejection of his policy

critique, Confer can’t point to any other substantive deficiency in the district court’s analysis of

the § 3553(a) factors. So the district court didn’t err because it had no obligation to agree with

Confer’s policy argument.

Instead, the court gave Confer a below-guidelines sentence for other reasons. Specifically,

the district judge looked at sentencing data, which showed a gap between Confer’s recommended

Guidelines range and actual sentences imposed on similar defendants. As to the thirty-five

7 No. 24-3589, United States v. Confer

similarly situated defendants (i.e., those with the same offense level and criminal history category

as Confer) whom the court considered, their average term of imprisonment was 86 months. So to

avoid any unwarranted disparity between those individuals and Confer, the district judge varied

down from the Guidelines’ recommended range, while still accounting for all the other § 3553(a)

factors. The district court acted well within its discretion.

IV.

For those reasons, we affirm.