United States v. Terrance Allen

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 14, 2022
• Docket: 21-3900
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0409n.06

No. 21-3900

UNITED STATES COURT OF APPEALS FILED Oct 14, 2022 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF TERRANCE ALLEN, ) OHIO Defendant-Appellant. ) ) OPINION

Before: SUTTON, Chief Judge; STRANCH and DAVIS, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Terrance Allen appeals his aggregate 390-month

sentence for drug- and firearm-related charges. The sentencing court varied slightly downward

from the Guidelines in sentencing Allen, but he challenges the sentence as procedurally and

substantively unreasonable because the court improperly applied certain sentencing enhancements,

failed to depart below the Guidelines based on an overrepresented criminal history category, and

did not properly weigh the factors delineated in 18 U.S.C. § 3553(a). Because the sentence was

procedurally and substantively reasonable, we AFFIRM Allen’s sentence.

I. BACKGROUND

On December 10, 2019, Allen pleaded guilty to nine counts, including: conspiracy to

possess with intent to distribute and to distribute heroin and fentanyl (21 U.S.C. § 846); knowing

and intentional distribution of fentanyl in various quantities (21 U.S.C. § 841(a)(1), (b)(1)(C));

knowing possession of a firearm while having previously been convicted of a felony crime (18 No. 21-3900, United States v. Allen

U.S.C. § 922(g)(1)); and knowing possession of a firearm in furtherance of drug trafficking (18

U.S.C. § 924(c)(1)(A)). Based on Allen’s calculated offense level (41) and criminal history

category (VI), the Presentence Investigation Report (PSR) recommended a Guidelines range of

360 months to life, with all but the Section 924(c) count to be served concurrently, and 60

additional, consecutive months for the 924(c) count.

Allen objected to the PSR’s recommendation on several grounds relevant to this appeal.

First, he objected to the two-point sentencing enhancement for maintaining a premise for the

purpose of manufacturing or distributing a controlled substance, arguing that the primary purpose

of the two residences to which the enhancement applied was to house Allen’s children and their

mothers. Second, Allen argued that the four-point enhancement for knowingly misrepresenting or

knowingly marketing a mixture or substance containing fentanyl as another substance should not

apply because he did not know that the drugs he and others were selling contained fentanyl. Third,

he objected to being assessed criminal history points for five prior assaults that took place while

he was incarcerated on the basis that he did not serve a period of incarceration for those

convictions. And fourth, Allen argued that a downward departure from the Guidelines was

warranted because of the “exceptional” extent of his drug and alcohol use from an early age.

Allen reiterated these objections at sentencing. He also emphasized that the five assault

convictions in the record overstated his criminal background and likelihood to re-offend because

assaults in a jail setting are qualitatively different than assaulting someone in public. Given the

inherent tensions of the jail environment, and the fact that he was defending himself, Allen argued

that a departure or variance from the Guidelines was warranted. The sentencing court overruled

this and every other objection.

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Ultimately, the district court accepted the PSR’s recommendation as to Allen’s offense

level and criminal history category. After considering the Section 3553(a) factors, Allen’s prior

conduct, and his testimony, the court varied downward from the Guidelines recommendation of

360 months by 30 months as to his drug-related charges. In combination with the mandatory 60-

month Section 924(c) sentence, the total sentence imposed was 390 months. Allen timely

appealed, renewing his objections as to the procedural and substantive reasonableness of his

sentence.

II. ANALYSIS

We review the district court’s sentence for procedural or substantive reasonableness under

an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). “In reviewing the

district court’s calculation of the Guidelines, we . . . review the district court’s factual findings for

clear error and its legal conclusions de novo.” United States v. Bolds, 511 F.3d 568, 579 (6th Cir.

2007).

A. Procedural Reasonableness

A sentence is procedurally unreasonable when a court commits a procedural error, “such

as failing to calculate (or improperly calculating) the Guidelines range,” failing to consider the

Section 3553(a) factors, failing to explain adequately why it chose the sentence, or selecting the

sentence based on clearly erroneous facts. Gall, 552 U.S. at 51.

According to Allen, his sentence was procedurally unreasonable because the district court

improperly calculated the applicable Guidelines range in two ways. First, the court should not

have applied the drug premises enhancement or the enhancement for misrepresenting a substance

containing fentanyl. Second, the court failed to vary down from the Guidelines range given his

overrepresented criminal history.

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1. Sentencing Enhancements

We begin with the enhancements. The two-point drug premises enhancement applies to

anyone “who knowingly maintains a premises (i.e., a building, room, or enclosure) for the purpose

of manufacturing or distributing a controlled substance, including storage of a controlled substance

for the purpose of distribution.” USSG § 2D1.1 cmt. n. 17. Manufacture or distribution of “a

controlled substance need not be the sole purpose for which the premises was maintained, but must

be one of the defendant’s primary or principal uses for the premises,” not an “incidental or

collateral” use. Id.; see United States v. Johnson, 737 F.3d 444, 447 (6th Cir. 2013). In applying

the enhancement, the court considers the relative frequency of lawful to unlawful use of the

premises. USSG § 2D1.1 cmt. n. 17.

Allen contends that the distribution of drugs was not the primary purpose at either of the

residences that the sentencing court considered in applying the enhancement. Rather, they both

served as residences for his children and their mothers. It is undisputed that, when the search

warrant was executed, one of the homes was found to contain a firearm, ammunition, currency

totaling over $10,000, and fentanyl, and the other contained a cutting agent frequently used to cut

fentanyl, digital scales, and packaging materials.

As an initial matter, Allen’s framing of the enhancement’s standard is incorrect. Drug

manufacture or distribution need not be the primary purpose of a residence for the enhancement to

apply, only a primary purpose. See USSG § 2D1.1 cmt. n. 17; United States v. Bell, 766 F.3d 634,

638 (6th Cir. 2014) (“One can maintain a premises for more than one purpose.”). Allen stored

drugs, tools of the trade—“‘e.g., laboratory equipment, scales, guns and ammunition to protect the

inventory and profits,’ . . . including large quantities of cash” in the residences. Johnson, 737 F.3d

at 447 (quoting United States v. Verners, 53 F.3d 291, 297 (10th Cir. 1995)). Such evidence,

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“[t]aken together,” supports the district court’s conclusion that Allen used space or rooms in his

two homes to store and prepare drugs for distribution, “the central purpose of which was to further

a drug-trafficking conspiracy.” Id. at 448.

Allen attempts to attack the sufficiency of the evidence by distinguishing Johnson and Bell,

two other cases where we applied the enhancement. Unlike Johnson or Bell, he argues, here there

was no evidence of drug production, sales or transactions made from the residences, or

participation in drug production or distribution by his family members. But “[w]hat is sufficient

is not always necessary.” Bell, 766 F.3d at 637; Johnson, 737 F.3d at 448 (finding same). To

apply the enhancement, “[d]rug storage on the property and transactions on the property will

usually suffice, but so too will a litany of circumstantial evidence” showing drug production or

distribution on the premises. Bell, 766 F.3d at 638. Based on the fentanyl, cutting agent, digital

scales, packaging materials, firearm, and cash, the district court had sufficient evidence to conclude

that a primary purpose of the residences was drug manufacture and distribution. That Allen’s

family members lived in the homes does not change that result; “[l]iving in a residence and cooking

drugs in it can both be relevant purposes under the guideline.” Id. at 638; see also United States

v. Broadnax, 777 F. App’x 137, 142 (6th Cir. 2019). The district court properly applied the drug

premises enhancement.

Next, the enhancement for misrepresenting a substance containing fentanyl applies to

anyone who “knowingly misrepresented or knowingly marketed as another substance a mixture or

substance containing fentanyl.” USSG § 2D1.1(b)(13). This enhancement is relatively new to the

Guidelines. See 83 Fed. Reg. 3,869, 3,875 (Jan. 26, 2018). If a person “does not know the

substance contains fentanyl . . . , the enhancement does not apply. The specific offense

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characteristic includes a mens rea requirement to ensure that only the most culpable” are subjected

to the enhancement. USSG supp. to app. C, amend. 807 (2021).

A sentencing court’s finding under the Guidelines must be based on “reliable information

and a preponderance of the evidence.” United States v. Yagar, 404 F.3d 967, 972 (6th Cir. 2005)

(citing USSG § 6A1.3, cmt.). The court is “not restricted to information that would be admissible

at trial”; rather, the court can consider “[a]ny” information, including hearsay, so long as it is

sufficiently reliable. USSG § 6A1.3, cmt. It is the government’s burden to prove that a particular

sentencing enhancement applies. United States v. Stubblefield, 682 F.3d 502, 510 (6th Cir. 2012).

Allen argues that there was not enough evidence presented at sentencing to merit applying

the knowing misrepresentation enhancement. During the hearing, the government read the line

sheet of a phone call made to one of Allen’s co-defendants during which the caller told the co-

defendant, Allen’s “right-hand man,” that the heroin he and Allen were selling contained fentanyl.

Allen contends that his co-defendant’s knowledge that the heroin contained fentanyl has no bearing

on whether he had that knowledge. But, as the government points out and as the sentencing court

acknowledged, both the caller and another individual told one of the case agents they had told

Allen directly that the heroin he was selling contained fentanyl. Also, Allen had a close

relationship with the co-defendant who received the phone call, and the sentencing court found it

implausible that the co-defendant would conceal the phone call and its contents from Allen.

Taking together the caller’s testimony and Allen’s relationship with his co-defendant, the

sentencing court concluded that Allen’s testimony during the hearing that he had no idea there was

fentanyl in the heroin he sold was unpersuasive.

The district court permissibly considered the testimony that two individuals told Allen the

heroin contained fentanyl. See United States v. Santana, 723 F. App’x 331, 337 (6th Cir. 2018)

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(“[H]earsay is permissible at a sentencing hearing so long as it has some minimum indicia of

reliability.” (quoting United States v. Darwich, 337 F.3d 645, 656 (6th Cir. 2003)). And, while

we cannot say that the relationship between Allen and his co-defendant requires a conclusion that

the co-defendant told him about the phone call, it is not for us to reverse the sentencing court where

there are “two permissible views of the evidence.” Anderson v. Bessemer City, 470 U.S. 564, 574

(1985). Based on the evidence before the court, it was not improper to conclude that, on balance,

Allen was aware the heroin he was selling contained fentanyl and sold it as heroin anyway. The

district court properly applied the knowing misrepresentation enhancement.

2. Overrepresented Criminal History

Allen’s final challenge to the procedural reasonableness of his sentence is based on the

district court’s refusal to depart or vary down from the Guidelines because of Allen’s

overrepresented criminal history. See USSG § 4A1.3(b)(1). Specifically, Allen claims that the

five assault convictions the court relied on in determining his criminal history substantially over-

represent the seriousness of his history because all five assaults occurred while he was

incarcerated. To support his argument that a downward variance or departure was warranted,

Allen reiterates the arguments he made before the sentencing court: fights in jail are both common

and qualitatively different from assaults in public; the jail environment is inherently tense; and

Allen was defending himself. Allen also cites United States v. Vowell, 516 F.3d 503, 512 (6th Cir.

2008), but his reliance on that case is misplaced because Vowell discussed substantive

reasonableness, not procedural.

We generally do “not review a district court’s decision not to depart downward unless the

record shows that the district court was unaware of, or did not understand, its discretion to make

such a departure.” United States v. Johnson, 553 F.3d 990, 999 (6th Cir. 2009) (quoting United

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States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008)); see United States v. Mitchell, 681 F.3d

867, 880-81 (6th Cir. 2012) (reviewing deferentially a decision not to vary downward).

Here, the record shows that the sentencing court was both aware of and understood its

discretion to depart or vary downward from the Guidelines but chose not to do so. At sentencing,

Allen argued that a departure was warranted because of his overrepresented criminal history. The

court refused, finding that assaults in the jail context are no less significant than unprovoked public

assaults. The court also informed Allen during the hearing that it would hear argument as to

“anything . . . that might justify a downward variance,” further demonstrating awareness of its

discretion to vary from the Guidelines. That the court decided not to depart or vary from the

Guidelines based on Allen’s criminal history does not mean it was unaware of its discretion to do

so. Accordingly, we decline to review the district court’s failure to grant a downward departure

or variance based on Allen’s criminal history.

B. Substantive Reasonableness

A sentence is substantively unreasonable—i.e., too long—if the district court gave too

much weight to some of the Section 3553(a) factors and too little to others. United States

v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). While the court should consider all pertinent factors,

the court “may place great weight on one factor if such weight is warranted under the facts of the

case.” United States v. Adkins, 729 F.3d 559, 571 (6th Cir. 2013). A sentence that falls within a

correctly calculated Guidelines range is presumed to be reasonable, but a sentence outside the

Guidelines range is not presumed to be unreasonable. United States v. Johnson, 640 F.3d 195, 202

(6th Cir. 2011).

Allen argues that the 390-month sentence imposed is substantively unreasonable because

it was greater than necessary to meet the statutory purposes of sentencing in light of Allen’s history

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and background, the nature of the offense, and the need for deterrence and the public’s protection.1

Allen did in fact plead guilty and accept responsibility for his actions. And it is true that he had a

difficult upbringing: his parents were addicted to drugs, and he started using drugs and alcohol at

13 years old. Moreover, while incarcerated, Allen had voluntarily taken advantage of

programming related to sobriety and anger management. He was approximately 28 years old at

the time of sentencing.

In imposing the 390-month sentence, the court focused on the seriousness of Allen’s

conduct and the impact it had on his community. The court specifically noted Allen’s upbringing,

explaining that Allen’s actions continued to perpetuate the very cycle that had made his childhood

challenging. Although the court varied downward from the Guidelines by 30 months, it

emphasized the need to deter others from following Allen’s path, to “break the cycle,” and to

promote respect for the law. The court acknowledged that the sentence was the “most severe” it

had imposed in similar cases in 25 years, but ultimately found that the sentence imposed was

sufficient but not greater than necessary to accomplish its purposes. In short, the court weighed

Allen’s history and background, the nature and seriousness of the offense, and the need for

deterrence and public protection.

We find that the sentencing court did not err in weighing the Section 3553(a) factors. “The

district court had an interest in seeing that [Allen’s] sentence reflected the seriousness of the

offense; in affording adequate deterrence; and in protecting the public from further crimes . . . .”

Adkins, 729 F.3d at 572. Given the circumstances, the court acted within its discretion by placing

more weight on the seriousness of Allen’s offense and the need for deterrence. We will not

1 Allen also argues that his co-defendant, Donte Walker, received a much shorter sentence of 262 months. But Walker received a lesser enhancement than Allen did, and, unlike Allen, did not have a prior felony record, so we find Walker’s sentence unpersuasive in analyzing the substantive reasonableness of Allen’s.

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substitute our judgment for that of the sentencing court and grant Allen’s request to “balance the

factors dif[f]erently than the district court did.” United States v. Ely, 468 F.3d 399, 404 (6th Cir.

2006) (emphasis removed).

III. CONCLUSION

For the foregoing reasons, we AFFIRM Allen’s sentence.

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