United States v. Ushery Stewart

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 2, 2024
• Docket: 22-5681
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0343n.06

Nos. 22-5046/5107/5131/5681/6056

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Aug 02, 2024 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN ALIM TURNER, RONALD TURNER, KEDARIS ) DISTRICT OF TENNESSEE GILMORE, USHERY STEWART, and ) DEMETRIUS BIBBS, ) OPINION Defendants-Appellants. ) ) )

Before: SUTTON, Chief Judge; GRIFFIN and READLER, Circuit Judges.

GRIFFIN, Circuit Judge.

In these consolidated cases, defendants appeal their convictions and sentences stemming

from their distribution of massive amounts of drugs in Tennessee as part of their membership in

or association with the Vice Lords gang. Defendants raise a host of issues on appeal. This opinion

resolves the appeals of defendants Alim Turner, Ronald Turner, Kedaris Gilmore, Ushery Stewart,

and Demetrius Bibbs. We separately address defendant Mahlon Prater’s appeal in No. 22-5599.

In this case, the issues raised by defendants lack merit. Thus, for the reasons stated below, we

affirm.

I.

These appeals concern a subset of the Vice Lords gang, sometimes known as the Unknown

Ghost Vice Lords, which operated in Tennessee in 2018 and 2019. The Vice Lords gang is a

hierarchical organization that sells significant quantities of drugs and often uses firearms and other No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

violent means to facilitate that distribution. Although gang members peddled various kinds of

drugs, methamphetamine was their main product. For example, one of the gang’s main players,

Christopher Hounschell, regularly sourced 15 to 20 pounds (7 to 9 kilograms) of

methamphetamine per month for members to distribute in and around Knoxville, Tennessee.

Brothers Alim and Ronald Turner led the gang’s efforts. Ronald was in charge, facilitating

the gang’s acquisition and distribution of drugs and money laundering (all from his Tennessee

prison cell while serving a sentence for attempted second-degree murder). Alim similarly played

a major role; at his brother’s direction, Alim helped secure pounds of drugs from various sources—

including a fateful shipment of five pounds of actual methamphetamine to Mahlon Prater’s

Knoxville house that law enforcement intercepted in July 2019. Like Prater, defendants Kedaris

Gilmore and Ushery Stewart were mid-level dealers who helped acquire and sell large amounts of

methamphetamine and other drugs. Demetrius Bibbs, a member of the Bloods gang who

associated with the Vice Lords, played a smaller role, focusing on heroin. Firearms and violent

crimes pervaded the gang’s activities.

The operative indictment charged numerous defendants with conspiracy to distribute and

possession with intent to distribute various scheduled drugs (with methamphetamine being the

focus), conspiracy to launder money, and other drug- and firearm-related crimes. Some defendants

pleaded guilty, while eight others elected to be tried by a jury. Those who pleaded guilty testified

against those who did not. Following a lengthy trial, the jury convicted all eight defendants of

most of the crimes charged. Six appeal.1

1 Two defendants who were convicted by the jury, Jyshon Forbes and Trevor Cox, did not appeal. -2- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

As relevant here, the main conviction was for drug-trafficking conspiracy. Apart from

Bibbs, the jury found that 50 grams or more of methamphetamine was attributable to each

defendant (Bibbs was not charged with methamphetamine crimes; instead, the jury attributed

heroin to him). Other convictions include illegal firearm use and possession, money-laundering

conspiracy, drug possession, and possession with the intent to distribute.

The combination of their conspiracy convictions, the various enhancements, and the district

court’s drug-quantity calculations—that each defendant (save Bibbs) was responsible for at least

4.5 kilograms of actual methamphetamine—produced a Guidelines range of life imprisonment for

all but Bibbs. To put the drug-quantity finding in context, it is in the same Guidelines category as

90 kilograms or more of heroin, 450 kilograms or more of cocaine, and 36 kilograms or more of

fentanyl. U.S.S.G. § 2D1.1(c)(1). “An average ‘dose’ of methamphetamine weighs between one-

tenth and one-quarter of a gram.” United States v. Potter, 927 F.3d 446, 448 (6th Cir. 2019).

Using that formula, defendants (again, save Bibbs) were responsible for between 18,000 to 45,000

individual doses of methamphetamine.

The district court imposed life sentences for Alim and Ronald Turner, Gilmore, and Stewart

(and all but Ronald also received additional mandatory consecutive sentences for their firearms

convictions under 18 U.S.C. § 924(c)), and 120 months’ imprisonment for Bibbs (33 months above

his Guidelines range). When defendants were sentenced, Bibbs (age 29) was the oldest, and the

rest were between 22 and 25 years old.

II.

We first address the district court’s denial of two motions to suppress, beginning with

defendants’ challenges to wiretaps on the telephones of Mahlon Prater and Alim Turner. Evidence

discovered through the wiretaps, along with the testimony of several coconspirators who pleaded

-3- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

guilty and then cooperated, formed the basis for defendants’ convictions. We also address

Stewart’s challenge to a search warrant that authorized a search of his residence. For the reasons

that follow, none of these pretrial issues are meritorious.

A.

Law enforcement began investigating the Knoxville, Tennessee, chapter of the Vice Lords

street gang for drug trafficking in mid-2018 following a rise in violence—namely retaliatory

shootings—between the Vice Lords and the Crips. As part of those efforts, officers sought and

received three wiretap orders: (1) a March 26, 2019, order tapping Mahlon Prater’s telephone

(“TT-1”); (2) a June 5, 2019, order tapping Alim Turner’s telephone (“TT-2”); and (3) a July 26,

2019, order extending the tap of Alim’s “TT-2” telephone and tapping another telephone number

associated with him (“TT-2/TT-3”).

Alim Turner, Ronald Turner, and Stewart contend that the affidavits in support of the

wiretap applications did not establish probable cause or necessity as required by the Wiretap Act.

Alim separately asserts the government did not comply with the Act’s sealing requirements. A

magistrate judge rejected defendants’ arguments in a report and recommendation, which the

district court largely adopted. As set forth below, both judges correctly identified the significant

flaws in defendants’ arguments.

1.

We begin with a brief overview of the law applicable to reviewing wiretap orders.

Congress granted statutory authority for law-enforcement interception of private telephone

conversations when it passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. §§ 2510–23. The statute permits a federal judge to issue a wiretap order if the

government establishes: (1) probable cause to believe that the targeted individual engaged or will

-4- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

engage in criminal activity; (2) that “normal investigative procedures have been tried and have

failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous”; and (3) the

wiretap application includes “a full and complete statement” in that regard. Id. §§ 2518(3)(a), (c),

(1)(c).

A wiretap authorization requires a judicial determination that “there is probable cause for

belief that an individual is committing, has committed, or is about to commit” an enumerated

offense and that “particular communications concerning that offense” will be intercepted. Id.

§ 2518(3)(a)–(b). When reviewing Title III intercept orders for probable cause, we apply a similar

standard to that used to evaluate search warrants. See United States v. Alfano, 838 F.2d 158, 161–

62 (6th Cir. 1988). “Certainty is not required, but rather a fair probability and something more than

mere suspicion.” United States v. Poulsen, 655 F.3d 492, 504 (6th Cir. 2011). We evaluate the

affidavit “on the totality of the circumstances and in a reasonable and common sense manner,” and

give “great deference” to the issuing judge’s determination that probable cause existed to issue the

intercept order because that judge was “in the best position to determine all of the circumstances

in the light in which they may appear at the time.” Alfano, 838 F.2d at 161–62 (citations omitted).

Finally, when—as here—a district court denies a defendant’s motion to suppress the fruits of the

Title III surveillance, “we review all evidence in the light most favorable to the government.”

United States v. Young, 847 F.3d 328, 342 (6th Cir. 2017).

Regarding necessity, federal law enforcement officials must make “a full and complete

statement as to whether or not other investigative procedures have been tried and failed or why

they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C.

§ 2518(1)(c). This necessity requirement “[e]nsure[s] that wiretapping is not resorted to in a

situation where traditional investigative techniques would suffice to expose the crime.” Young,

-5- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

847 F.3d at 343 (internal quotation marks omitted). “What is needed is to show that wiretaps are

not being routinely employed as the initial step in criminal investigation.” Id. (brackets and

citation omitted). In other words, the government “is not required to prove that every other

conceivable method has been tried and failed or that all avenues of investigation have been

exhausted”; rather, the government must have given “serious consideration” to traditional

investigative techniques and then explain their inadequacies. Alfano, 838 F.2d at 163 (citations

omitted). We review the factual finding of necessity for clear error. See United States v. Cooper,

893 F.3d 840, 844 (6th Cir. 2018).

2.

Agent Brandon Stryker’s March 26, 2019, affidavit set forth probable cause and necessity

for an intercept of Prater’s phone (TT-1).

Agent Stryker’s 32-page affidavit is full of facts that would lead a reasonable judge to

determine that there was probable cause to believe that defendants were involved in a drug-

trafficking conspiracy. It first identifies Alim Turner as the one “in charge of the gang in the

Knoxville, TN area” and “also sells drugs.” The affidavit, for example, details how police searched

and seized Alim’s phone pursuant to a search warrant after his arrest for violating the terms of his

probation. Their search “discovered many drug trafficking related conversations” on his phone,

including one on November 16, 2018, wherein Alim “discussed buying more drugs, marijuana and

possible cocaine or crack cocaine.” And it identified Prater as a ranking Vice Lords member who

sold crack cocaine to a confidential source between December 2018 and January 2019, and showed

that, before he did so, he used a telephone to set up the transactions. The affidavit also established

that Prater exchanged hundreds of calls and text messages with at least two other known Vice

-6- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

Lords associated with significant drug trafficking, including Alim (most recently on March 18,

2019).

Only Alim challenges probable cause on appeal, and he does so just in a limited sense—in

his view, the affidavit that led to the TT-1 wiretap relies on stale information, or facts that occurred

too far in the past to give rise to probable cause. See, e.g., United States v. Perry, 864 F.3d 412,

414 (6th Cir. 2017).

But the magistrate judge concluded the information in the TT-1 affidavit was not stale,

pointing both to the six controlled buys in which Prater participated that occurred within two

months of the wiretap application and Prater’s continued contact—via phone—with other known

criminal associates up to a week before the application. And Alim did not object to this conclusion,

which the district court adopted. Having failed to properly preserve a staleness argument regarding

the TT-1 wiretap by not objecting to the magistrate judge’s report and recommendation, Alim

forfeited his right to raise the issue here. See Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019).

In any event, for the reasons the magistrate judge articulated, there is no reason to set aside the

magistrate judge’s holding that the information was not stale as to TT-1.

b.

Next, Alim challenges the TT-1 wiretap on the ground that it was not necessary. In his

view, that wiretap application was “premature” because the government did not try other

investigative techniques before applying for a wiretap, and Agent Stryker’s affidavit was too

conclusory when he attested that other methods would be futile. Applying the commonsense

approach dictated by our caselaw, the magistrate judge disagreed and held that defendants had not

overcome the deference afforded to the issuing court’s judgment. Alim objected, with just one

substantive sentence of argument: “Because wiretaps are so extraordinarily invasive, Congress

-7- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

intended the procedure to be used only when traditional investigative methods had been tried and

failed.” The district court found this objection too conclusory and overruled it. And such a

conclusory argument to the district court again forfeits this issue for appeal. See Berkshire, 928

F.3d at 530; see also Howard v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991)

(treating a general objection the same as a failure to file an objection).

At any rate, the district court did not clearly err in concluding Agent Stryker’s March 26,

2019, affidavit demonstrated necessity. The affidavit sets forth ample facts showing that law

enforcement reasonably considered and attempted other investigative techniques before applying

for a wiretap. Alfano, 838 F.2d at 164. The Vice Lords, the affidavit noted, engaged in counter

surveillance—they changed telephone numbers and would “drive evasively, making continued

surveillance difficult or too risky.” Moreover, the targeted residential area was “a very difficult

area to conduct live surveillance.” It was a tightknit community and “frequent, unfamiliar vehicles

or unusual traffic patterns would be obvious to the [gang] and other residents who live in that

area.” Agent Stryker detailed why the risks associated with installing vehicle- or phone-location-

tracking devices outweighed their limited potential value and explained that pole cameras utilized

in the investigation did not “provide specific enough information to penetrate or dismantle” the

gang. He additionally discussed the use of confidential sources, noting that law enforcement

developed only one source; that source did not provide useful information, cut off contact, and law

enforcement did not reasonably expect to develop other confidential sources. The affidavit also

detailed other unsuccessful non-wiretap techniques, like using undercover agents, consensual

monitoring, trash pulls, mail covers, grand-jury subpoenas, subject interviews, search warrants,

phone-toll records, and financial investigations. Given these facts, the district court reasonably

concluded that a wiretap was necessary.

-8- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

3.

Agent Stryker’s June 5, 2019, affidavit set forth probable cause and necessity for an

intercept of Alim Turner’s phone (TT-2).

Agent Stryker’s June 5, 2019, affidavit builds upon his March 26, 2019, affidavit with

several duplicative paragraphs. In this affidavit, Agent Stryker details a new telephone number to

be targeted, Alim Turner’s, and adds to the target-subjects list. The affidavit notes that while the

wiretap on Prater’s phone resulted in the interception of him discussing a “sale of pills” and

arranging a “small user amount of crack cocaine to a confidential source,” the interceptions were

“not very helpful in achieving the goals of th[e] investigation” because Prater was “kicked out of

the Vice Lords gang” just after the intercepts began. After that, “his gang/[drug trafficking

organization] related activities and communications largely ceased.”

So the affidavit focuses on what Agent Stryker had learned about Alim (the overall target

of the investigation) and his interactions with other known drug traffickers. Through a confidential

source, law enforcement learned that Alim “receives pounds of marijuana via the mail system and

sells other narcotics including crack cocaine in addition to the marijuana.” The affidavit also

discusses various electronic evidence already gained regarding Alim. That section of the affidavit

begins by referencing text messages between Alim and another that occurred on November 4,

2018, wherein Alim discusses “need[ing] narcotics other than marijuana to sell,” like heroin. It

then walks through other electronic communications Alim had with defendant Stewart, a known

“mid-level distributor of crystal methamphetamine and heroin in Knoxville,” on November 19,

2018 (distributing methamphetamine and the purchase of an AK-47 firearm), and on December 6

and 7, 2018 (discussing Alim traveling to Atlanta for drugs), as well as communications he had

-9- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

with an unknown person on January 31, 2019 (arranging the sale of marijuana). And it details the

results of a pen register/trap and trace on TT-2 that showed 7,040 calls were placed to and from

TT-2, and that phone received 25,536 text messages between November 28, 2018, and May 28,

2019. 1,078 of those calls and 753 of those text messages were between Alim and Stewart.

Alim Turner, Ronald Turner, and Stewart all challenge on appeal Agent Stryker’s June 5,

2019, affidavit as stale.2 Relying on the principle that “[e]vidence of ongoing criminal activity

will generally defeat a claim of staleness,” United States v. Greene, 250 F.3d 471, 481 (6th Cir.

2001), the magistrate judge disagreed and observed that “the TT-2 affidavit established much more

than an isolated drug transaction.” In her view, the repeated nature of drug transactions over a

short period of time leading up to the affidavit, along with the volume of communications between

known drug distributors, were more than enough to find the affidavit was supported by fresh

evidence. See Alfano, 838 F.2d at 162.

Over defendants’ objections, the district court agreed. In addition to the various exchanges

showing drug transactions that recently occurred between Alim and others, the district court found

“particularly compelling the over 1000 phone calls exchanged between Defendant Alim Turner

and Defendant Stewart during this 6 to 7-month period. While phone calls may be more frequent

now, with the popularity of cellular phones, such a volume of phone calls between two participants

is uncommon.” The district court also cited Agent Stryker’s “statement that he knows, from his

experience, that drug traffickers are often hesitant to discuss quantities, prices, and arrange

2 Alim also raises an undeveloped argument that we decline to address. He claims that the district court plainly erred by not suppressing evidence (text messages) gathered from his cell phone. The gist of his argument appears to be that the search warrant used to secure those text messages was limited in scope to investigating either his probation violation or an unrelated crime and that Agent Stryker’s use of that information to secure the Title III wiretap was beyond that scope. But he admits his counsel did not raise this argument below, and instead wishes to preserve it for an ineffective-assistance-of-counsel claim. -10- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

transactions via text messages and prefer to call or meet in person.” Considering all this evidence,

the district court concluded there was “a fair probability that a wiretap of TT-2 would produce

further evidence of criminal activity.”

On appeal, Alim Turner, Ronald Turner, and Stewart all insist that the June 5, 2019, TT-2

affidavit was stale because it relied on text messages from Alim that dated back to November 2018

and that it was erroneous to infer ongoing criminal activity from the frequency of communication.

We disagree, largely for the reasons stated by the district court. As in Alfano, “there is a recurring

pattern of multiple connections among the phone calls, between and among recognized members

of the conspiracy.” 838 F.2d at 162. Such a recurring pattern of communications among

coconspirators suggests “‘a fair probability’ that interception of further calls would reveal evidence

of a crime.” Id. The district court appropriately reasoned that the volume of calls between Alim

and Stewart—which often followed text-message exchanges—was particularly “uncommon.”

With that finding plus the several recent documented phone calls and text messages between

Stewart and Alim (the last being May 28, 2019), Agent Stryker’s attestation that drug traffickers

prefer to discuss transaction details by phone call rather than text message, and the “great

deference” afforded to the issuing judge’s probable-cause determination, id., the district court

correctly found that the affidavit did not rely on stale information. True, “mere association with

conspirators is not enough to establish participation in a conspiracy,” United States v. Gibbs, 182

F.3d 408, 422 (6th Cir. 1999) (citation omitted), and yes, the TT-1 wiretap did not produce

additional evidence concerning Alim. But the evidence set forth above establishes this is not a

guilt-by-association case. And the government readily explained why there was a lack of evidence

from the TT-1 wiretap, necessitating the TT-2 wiretap—the Vice Lords had (temporarily, as it

turned out) kicked Prater out of the gang.

-11- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

For these reasons, defendants’ challenges to the TT-2 wiretap regarding probable cause are

without merit.

The district court did not clearly err in concluding Agent Stryker’s June 5, 2019, affidavit

demonstrated necessity. Agent Stryker’s affidavit is largely duplicative of his March 26, 2019,

affidavit concerning necessity, but it adds further connections specific to Alim Turner given the

prior wiretap request was just for Prater’s phone. It, for example, details multiple attempts to

surveil Alim’s residence and vehicles. Those attempts were unsuccessful, in large part “due to the

small size of the parking lot and frequency with which residents come and go from the apartment

complex” and the “risk of detection . . . outweigh[ing] the potential value of [GPS-tracking]

devices.” The affidavit also set forth why agents did not believe GPS tracking would be successful,

why the pole camera used to observe others was not fruitful, and why other similar investigative

efforts addressed in the TT-1 affidavit were deemed insufficient. The magistrate judge concluded

that the TT-2 affidavit demonstrated necessity, despite using, at times, language identical to that

used in the TT-1 affidavit. And the district court agreed. In its words, the facts “reflect that law

enforcement gave serious consideration to non-wiretap investigative techniques prior to applying

for the wiretaps, and the issuing judge was informed of the reasons for the investigators’ beliefs

that such alternative investigative techniques would be inadequate in this case.”

Alim Turner and Ronald Turner resist this conclusion, largely noting the overlap between

Agent Stryker’s TT-1 and TT-2 affidavits, some purported contradictory information contained in

the affidavits, and their generalized nature—i.e., challenging the conclusion that other

investigative efforts were difficult in light of the community in which defendants lived—to assert

the TT-2 affidavit did not sufficiently demonstrate necessity. Alim also complains that

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investigators should have made greater attempts at alternative investigative techniques, asserting

they should have tried more than once to conduct physical surveillance on him. But the district

court appropriately considered and rejected these arguments and noted that Alim’s “only one try”

assertion is not supported by the record. Agent Stryker’s affidavit makes clear that agents

“attempted surveillance of [the target] locations on multiple occasions.” And regardless, as the

district court found, the affidavit sufficiently set forth concerns with other methods of

investigation. We find no reason to disturb the district court’s necessity finding.

4.

Agent Stryker’s July 26, 2019, affidavit set forth probable cause and necessity for

extending the intercept of TT-2 and for intercepting Alim Turner’s other telephone (TT-3).

We resolve Alim’s challenges to this affidavit summarily. He purports to challenge this

affidavit as again stale and lacking necessity, but his arguments are conclusory. His staleness

argument focuses again on just the use of his earlier text messages discussed above, and his

necessity argument is identical to those he made for the first two wiretaps. In short, he makes no

substantive effort to challenge the TT-2/TT-3 wiretap, rendering this issue abandoned. See United

States v. Calvetti, 836 F.3d 654, 662 n.1 (6th Cir. 2016). And even if not, for the reasons discussed

above, the district court appropriately concluded that the information presented in Agent Stryker’s

July 26, 2019, affidavit was not stale, and that the government demonstrated necessity for the TT-

2/TT-3 wiretap.

5.

The final wiretap issue on appeal concerns whether the government complied with Title

III’s sealing requirement.

-13- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

Title III directs that wiretaps “shall, if possible, be recorded on tape or wire or other

comparable device.” 18 U.S.C. § 2518(8)(a). “[T]o ensure the reliability and integrity of evidence

obtained by means of electronic surveillance,” United States v. Ojeda Rios, 495 U.S. 257, 263

(1990), 18 U.S.C. § 2518(8)(a) sets forth steps the government and issuing judge must take to

“protect the recording from editing or other alterations,” id. at 259 (quoting 18 U.S.C.

§ 2518(8)(a)). Chief is a sealing requirement. In pertinent part, the statute provides:

Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. . . . The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom . . . .

18 U.S.C. § 2518(8)(a) (emphasis added). Alim Turner claims on appeal that the government did

not comply with this “immediate” mandate concerning the TT-2 and TT-2/TT-3 wiretaps. Some

additional facts are required to better frame his argument.

As set forth in the government’s application to seal, the TT-2 wiretap “was taken down at

approximately midnight on [Friday,] July 5, 2019. On that same date, the case agents requested

that the wire contents be downloaded onto discs and forwarded to Knoxville, TN for sealing. The

discs were received on [Wednesday,] July 10, 2019, and on that same date [the government]

requested an appointment to seal with the Court.” The district court sealed the TT-2 recordings

on Thursday, July 11, 2019. All told, five days (including two weekend days) passed between the

expiration of the wiretap order and the government’s making the recordings available to the issuing

judge.

The TT-2/TT-3 wiretap had a similarly slight delay between the wire coming down and the

recordings being presented to the issuing judge. The government attested to the following in its

application to seal: “The wire was taken down at approximately 6:45pm [Friday,] August 2, 2019. -14- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

On [Tuesday,] August 6, 2019, the case agents requested that the wire contents be downloaded

onto discs and forwarded to Knoxville, TN for sealing. The discs were received on [Thursday,]

August 8, 2019, and on that same date [the government] requested an appointment to seal with the

Court.” The issuing judge sealed the TT-2/TT-3 recordings on Friday, August 9, 2019. Seven

days passed (including two weekend days) between the expiration of the wiretap order and the

government making the recordings available to the issuing judge.

For both wiretaps, the government explained that while they were “monitored in the

Eastern District of Tennessee,” the servers that recorded the wiretaps’ data were located outside

the district. Getting that data off the servers and to Knoxville took time: “The data on those

servers, oftentimes in very large quantities, must first be downloaded onto discs, then shipped via

a commercial carrier to Knoxville for sealing, and then the discs must be sealed by the district

court.”

In Alim’s view, the government did not comply with § 2518(8)(a)’s “immediately”

requirement given the five- and seven-day delays between when the wiretaps terminated and when

the recordings were presented to the district court. There is some support for Alim’s argument

here: “‘Immediately’ is understood as meaning ‘within one or two days.’” United States v.

Wilkinson, 53 F.3d 757, 759 (6th Cir. 1995) (citation omitted).

But as both the magistrate judge and district court appropriately recognized, § 2518(8)(a)

has an exception: “Where a recording of an intercepted conversation is not sealed ‘immediately’

upon expiration of the authorizing order, the ‘satisfactory explanation’ language of § 2518(8)(a)

requires that the government explain both the delay and why it is excusable, i.e., ‘satisfactory.’”

Id. (quoting Ojeda Rios, 495 U.S. at 265). “[O]ur review of the sufficiency of the Government’s

explanation for a delay should be based on the evidence presented and submissions made in the

-15- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

District Court.” Ojeda Rios, 495 U.S. at 267. A district court’s finding that the government

provided a satisfactory explanation for a delay is a finding of fact that we review for clear error.

Wilkinson, 53 F.3d at 759–60.

The district court applied this exception, concluding “the administrative process necessary

to obtain physical copies of the wiretap recordings [was] a ‘satisfactory explanation’ for a delay

of less than one week in sealing the wiretap recordings at issue.” See United States v. Carson, 969

F.2d 1480, 1488 (3d Cir. 1992) (commenting that “administrative delays” “necessitated by the

process required to comply with the provisions of the Act” are a “justifiable government delay[]

under the statutory scheme”). Alim disagrees, asserting that the statute does not provide for

“administrative delays” and that the government should have moved faster to get the data to the

issuing judge. But that argument ignores Wilkinson’s exception. 53 F.3d at 759. The district court

did not clearly err in finding the government satisfactorily explained the delay.

For these reasons, the district court appropriately resolved defendants’ various challenges

to the Title III wiretaps.

Stewart challenges the district court’s denial of his motion to suppress evidence seized

from his residence at 301 Lippencott Street, Apartment 512, Knoxville, Tennessee.

The affidavit supporting the search warrant at issue alleged that Stewart was a Vice Lord

who trafficked drugs, with a particular focus on methamphetamine. Evidence obtained from

wiretaps led the affiant (again, Agent Stryker) to conclude that Stewart and Alim Turner were

“purchasing and then reselling illegal narcotics.” Stryker recounted one telephone conversation in

late June 2019 in which the two discussed their desire to sell and distribute drugs, followed a few

minutes later by another call, in which Stewart agreed to sell two ounces of methamphetamine to

-16- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

Alim. A few days later, Alim and Stewart discussed a plan “to have pounds of meth shipped to

addresses in the Eastern District of Tennessee.” Two weeks after that call, law enforcement

intercepted a package containing five pounds of methamphetamine. Stewart and Gilmore (Alim

had been arrested by that point) then discussed plans to purchase more methamphetamine from

their supplier in Nashville. The next day, after Stewart delivered a bag of dog food to Gilmore,

police stopped Gilmore while driving to Nashville and found “$13,130 concealed inside a bag of

dog food.” Stryker believed that this money “was headed to Nashville as payment for the meth

that was being shipped to” Alim, Stewart, and other members of their organization.

Stryker’s affidavit did not, however, include any specific information directly tying

Stewart’s residence to drug trafficking, and it conceded that “law enforcement ha[d] been unable

to see exactly who comes in and out of” Stewart’s residence. Instead, Agent Stryker’s affidavit

set forth that, based on his “training and experience with narcotics trafficking, money laundering,

and criminal investigations, combined with the knowledge and information provided by other law

enforcement officers . . . [d]rug dealers usually keep controlled substances and paraphernalia . . .

at places under their control, such as their residences.” And it cited some of our caselaw

concluding that “in the case of drug dealers, evidence is likely to be found where the dealers

reside.” See, e.g., United States v. Goward, 188 F. App’x 355, 359 (6th Cir. 2006). As a result of

the search, law enforcement found a firearm, drug paraphernalia, and suspected drugs. Stewart

moved to suppress this evidence, but the district court denied his motion, concluding that the

warrant established probable cause because Stewart was “a major player in a large, ongoing drug

trafficking operation.” The district court also concluded that suppression was not warranted

because the good-faith exception applied.

-17- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

We do not need to decide whether probable cause existed for the search because the

evidence obtained during the search was nevertheless admissible due to the Leon good-faith

exception. “Under Leon, the exclusionary rule does not bar from admission ‘evidence seized in

reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.’”

United States v. Christian, 925 F.3d 305, 312 (6th Cir. 2019) (en banc) (quoting United States v.

Leon, 468 U.S. 897, 905 (1984)). “In the ordinary case, an officer cannot be expected to question

the magistrate’s probable-cause determination or his judgment that the form of the warrant is

technically sufficient. Once the warrant issues, there is literally nothing more the policeman can

do in seeking to comply with the law.” Leon, 468 U.S. at 921 (internal quotation marks and

brackets omitted). Moreover, “only in exceptional circumstances is law enforcement to disregard

a magistrate judge’s authorization—for instance, when a warrant is so lacking in indicia of

probable cause as to render official belief in its existence unreasonable, or when a warrant is so

facially deficient that it could not reasonably be presumed valid.” United States v. Richards, 659

F.3d 527, 542 (6th Cir. 2011) (internal quotation marks and brackets omitted).

The affidavit established that Stewart was part of a continuous and ongoing drug-

trafficking operation—it tied Stewart to a five-pound shipment of methamphetamine, a separate

transaction for two ounces of methamphetamine, and a scheme to purchase $13,130 of drugs from

Nashville. But the affidavit contained no direct evidence linking Stewart’s trafficking activities to

his house. At the time of the search, cases in this circuit came out differently on whether this

evidence sufficed for probable cause. Compare, e.g., United States v. Frazier, 423 F.3d 526, 533

(6th Cir. 2005) with United States v. Davidson, 936 F.2d 856, 860 (6th Cir. 1991). Those

“conflicting conclusions in that line of cases” means we must “forgive[] officers on good faith

grounds for failing to appreciate our precedential nuances.” United States v. Sanders, 106 F.4th

-18- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

455, 470 (6th Cir. 2024) (en banc). The Leon good-faith exception thus precludes exclusion. See

also United States v. Neal, 106 F.4th 568, 573 (6th Cir. 2024) (per curiam); United States v. Reed,

993 F.3d 441, 450–52 (6th Cir. 2021); United States v. Ardd, 911 F.3d 348, 351–52 (6th Cir. 2018).

For these reasons, we affirm the district court’s denial of Stewart’s motion to suppress.

III.

Defendants raise five issues concerning their trial: (A) the admission of gang-affiliation

evidence; (B) the sufficiency of the evidence supporting their convictions and alleged variance

between the indicted conspiracy and proofs at trial; (C) the jury instructions on conspiracy; (D) an

inconsistent jury verdict; and (E) prosecutorial misconduct. None have merit.

Alim Turner and Stewart challenge the district court’s admission of evidence related to

their gang affiliation under Federal Rule of Evidence 403, arguing that the unfair prejudice from

such evidence outweighed its probative value. In denying their pretrial motion in limine to exclude

any mention of “gang affiliation” or “Vice Lords,” as well as overruling their objections to such

evidence throughout trial, the district court found that this evidence was relevant to the conspiracy

charges and that any unfair prejudice to defendants did not substantially outweigh the evidence’s

probative value.

Under Rule 403, a trial court may exclude relevant evidence “if its probative value is

substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” “We review a

district court’s Rule 403 ruling for abuse of discretion.” Gibbs, 182 F.3d at 429. So we “take[] a

maximal view of the probative effect of the evidence and a minimal view of its unfairly prejudicial

effect, and will hold that the district court erred only if the latter [substantially] outweighs the

-19- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

former.” United States v. Sassanelli, 118 F.3d 495, 498 (6th Cir. 1997); see also United States v.

Zipkin, 729 F.2d 384, 389 (6th Cir. 1984).

We have repeatedly held that evidence of gang affiliation may be admitted as direct

evidence, relevant to and highly probative of participation in a conspiracy. See, e.g., United States

v. Ford, 761 F.3d 641, 649–50 (6th Cir. 2014); Gibbs, 182 F.3d at 430; United States v. Williams,

158 F. App’x 651, 653–54 (6th Cir. 2005); United States v. Shields, 850 F. App’x 406, 410–11

(6th Cir. 2021). Conversely, gang-affiliation evidence “is inadmissible if there is no connection

between the gang evidence and the charged offense.” Ford, 761 F.3d at 649–50 (citation omitted).

The simple fact that evidence of gang affiliation may be prejudicial to a defendant does not make

it inadmissible, see Williams, 158 F. App’x at 653, rather, it must “tend[] to suggest decision on

an improper basis” to be excluded under Rule 403, Gibbs, 182 F.3d at 430 (citation omitted).

Alim and Stewart take issue with testimony from three cooperating co-conspirators and

from an FBI Task Force Officer, as well as assertions the government made during its opening

statement and closing argument. Many of these challenged statements detail the Vice Lords’

organizational structure, name its members, and describe the crimes they commit, including drug-

and firearm-related crimes. Mainly, Alim and Stewart challenge the testimony suggesting that

they and other Vice Lords committed uncharged crimes or crimes that were not the subject of this

case. In their view, despite their concessions that such testimony is relevant, it still should have

been excluded because of its danger of unfair prejudice—namely, that the jury might convict them

because of the Vice Lords’ violent tendencies and commission of other crimes, not the crimes

charged.

-20- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

The district court did not abuse its discretion in admitting this evidence.3 Although Alim

and Stewart are correct that some of the testimony suggested that the Vice Lords have committed

(and generally commit) violent crimes such as robbery and murder outside the scope of this

prosecution, that testimony was interwoven with highly probative conversations about drug

dealing and firearms. Other times, the challenged testimony gave general background information

about the Vice Lords organization, which, as the district court recognized, “is highly probative of

a defendant’s participation in a conspiracy to distribute drugs” with that organization. See Shields,

850 F. App’x at 410. While this testimony might have been prejudicial to Alim and Stewart, its

prejudicial character did not “substantially outweigh[]” its probative value, so it was properly

admitted in accordance with Rule 403. See id. at 411. Moreover, the district court gave a limiting

instruction about this evidence no fewer than six times throughout the trial, repeatedly reminding

the jury that defendants were on trial only for the crimes charged and that being in a gang is not

against the law.

Defendants raise a host of sufficiency-of-the-evidence challenges. A defendant claiming

insufficient evidence to support a conviction “faces a high bar” on appeal. United States v.

Persaud, 866 F.3d 371, 380 (6th Cir. 2017). This is because we must uphold a jury’s conviction

if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). We will sustain a conviction based on circumstantial evidence

3 The government contends that some of the challenged testimony should be assessed under the plain-error standard of review because defendants did not contemporaneously object to its admission at trial. But defendants’ motion in limine sufficiently preserved this issue, and their Rule 403 argument fails under either abuse-of-discretion or plain-error review. -21- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

alone, and the evidence need not disprove every “hypothesis except that of guilt.” United States

v. Lindo, 18 F.3d 353, 357 (6th Cir. 1994) (citation omitted). A sufficiency claim does not require

us to “weigh the evidence presented, consider the credibility of witnesses, or substitute our

judgment for that of the jury.” United States v. Jackson, 470 F.3d 299, 309 (6th Cir. 2006) (citation

omitted). Rather, we “draw all available inferences and resolve all issues of credibility in favor of

the jury’s verdict.” Id. (citation omitted).

Ronald Turner was convicted of three counts: (1) conspiracy to distribute various drugs

(count one); (2) conspiracy to commit money laundering (count three); and (3) aiding and abetting

the attempted possession with intent to distribute methamphetamine (count four). He challenges

only his money-laundering-conspiracy conviction, which required the government to prove that

Ronald “(1) conducted a financial transaction that involved the proceeds of unlawful activity; (2)

knew the property involved was proceeds of unlawful activity; and (3) either intended to promote

that unlawful activity or knew that the transaction is designed in whole or in part to disguise the

source, ownership or control of the proceeds.” United States v. Matthews, 31 F.4th 436, 447 (6th

Cir. 2022) (alterations and internal quotation marks omitted); see also 18 U.S.C § 1956(h).

Sufficient evidence supports this conviction.

“The paradigmatic example of this crime is a drug dealer using the proceeds of a drug

transaction to purchase additional drugs and consummate future sales.” United States v. Warshak,

631 F.3d 266, 317 (6th Cir. 2010); see United States v. Tolliver, 949 F.3d 244, 248 (6th Cir. 2020)

(per curiam). And that is what defendants did. Consider, for example, Alim Turner telling Ronald

Turner on a recorded conversation, “I’m tryin’ to stack so I can get some more drugs”; i.e., Alim

was saving the drug profits to “[r]eup” on future drug purchases. Or take another call between the

-22- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

two wherein they discussed having “only . . . a week” to make hundreds of dollars in drug sales to

pay off a drug debt. Other examples of such “reinvest[ment]” abound. Tolliver, 949 F.3d at 248

(emphasis omitted). For example, the jury heard multiple calls between the brothers suggesting

that they transferred money through Cash App and Western Union to facilitate drug sales.

On appeal, Ronald Turner suggests that their use of Cash App and Western Union to

exchange money was insufficient to show either an agreement to launder money or that the

transactions were “designed in whole or in part to disguise the source, ownership or control of the

proceeds.” Matthews, 31 F.4th at 447 (alteration omitted). Regarding the latter, however, money-

laundering conspiracy requires only a financial transaction that was “either intended to promote

that unlawful activity or . . . designed in whole or in part to disguise the source, ownership or

control of the proceeds.” Id. (emphasis added; internal quotation marks and alteration omitted).

And the government more than demonstrated that defendants’ reinvestment of the drug-sale

proceeds “promoted” future unlawful activity. As to the former, a jury could reasonably infer

Ronald’s intent to join the money-laundering conspiracy given the evidence of both his drug-

trafficking efforts generally and how he and his brother structured financial transactions to

facilitate their drug trafficking.

Demetrius Bibbs was convicted of three counts: (1) conspiracy to distribute heroin (count

one); (2) possession with intent to distribute heroin while being aided and abetted by another (count

12); and (3) being a felon in possession of a firearm (count 15). He challenges his conspiracy-to-

distribute and firearm convictions.

-23- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

“To sustain a conviction for drug conspiracy under § 846, the government must prove

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

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

700, 710 (6th Cir. 2007) (citation omitted). The government need not establish a formal

agreement; rather, “a tacit or material understanding” is enough, and a defendant’s “knowledge of

and participation in a conspiracy may be inferred from his conduct and established by

circumstantial evidence.” United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005). Upon

proof of an agreement, a defendant’s connection to the conspiracy “need only be slight, and the

government is only required to prove that the defendant was a party to the general conspiratorial

agreement.” United States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009) (internal quotation marks

omitted).

The jury heard evidence tying Bibbs to the conspiracy through his relationship with

Camaron Billips. The two sold heroin “together.” Billips testified that Bibbs formerly sourced

heroin from a man nicknamed “Fat T” until he died in 2019. So Billips helped Bibbs get heroin

from Alim Turner instead. For example, Billips testified that Bibbs gave him money to purchase

approximately seven grams of heroin from Alim. Although Bibbs might not have known other

Vice Lords higher in the chain, it was reasonable for the jury to find that he participated in the

conspiracy by using Billips as an intermediary to purchase heroin from Alim for resale. See

Martinez, 430 F.3d at 332–33 (“In a drug distribution ‘chain’ conspiracy, it is enough to show that

each member of the conspiracy realized that he was participating in a joint venture, even if he did

not know the identities of every other member, or was not involved in all the activities in

furtherance of the conspiracy.”).

-24- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

To convict Bibbs of being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g), the government was required to prove: (1) Bibbs was a convicted felon; (2) Bibbs

possessed a firearm; and (3) the firearm traveled in or affected interstate or foreign commerce.

United States v. Vichitvongsa, 819 F.3d 260, 275 (6th Cir. 2016). Bibbs stipulated to the first and

third elements and on appeal argues only that the government failed to present sufficient evidence

that he possessed a firearm (a Glock 22 with an extended magazine). The government may

establish possession by actual or constructive possession of a firearm, United States v. Campbell,

549 F.3d 364, 374 (6th Cir. 2008), and here, the evidence presented at trial supports either theory.

Billips testified that he picked up Bibbs from the hospital on July 24, 2019, following the

birth of Bibbs’s son. Billips had the Glock 22 handgun at that time, but he told the jury that it

belonged to Bibbs, so he “gave it back to” Bibbs. When the two arrived at Bibbs’s house, Bibbs

put the gun in his room. Bibbs uploaded a video—also on July 24, 2019—to Facebook of him that

both depicted his possession of a Glock and talked about his shooting a Glock twenty-seven times,

which the jury heard would have required an extended magazine. Later that evening, Billips

retrieved the gun, and law enforcement (pursuant to a search warrant) discovered it next to the air

mattress Billips slept on the following day. The Glock seized by law enforcement had an extended

magazine, fitting the description from the Facebook video.

“Actual possession requires that a defendant have immediate possession or control of the

firearm,” id., and given Billips’s testimony and the Facebook evidence, a rational juror could have

concluded Bibbs actually possessed the firearm. Moreover, the Glock was discovered at Bibbs’s

house. “Proof that the person has dominion over the premises where the firearm is located is

sufficient to establish constructive possession.” United States v. Kincaide, 145 F.3d 771, 782 (6th

-25- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

Cir. 1998) (internal quotation marks omitted). Put differently, “[a] jury is entitled to infer that a

person exercises constructive possession over items found in his home.” United States v. Hill, 142

F.3d 305, 312 (6th Cir. 1998) (internal quotation marks omitted). So constructive possession

independently supports Bibbs’s conviction.

Bibbs’s arguments to the contrary do not persuade. Regarding actual possession, he argues

the jury did not credit Billips’s testimony because it acquitted Bibbs on two counts of possessing

a firearm in furtherance of drug-trafficking crimes. But we must “resolve all issues of credibility

in favor of the jury’s verdict.” Jackson, 470 F.3d at 309 (citation omitted). As to constructive

possession, Bibbs claims “[t]here is no credible proof that Mr. Bibbs had the requisite knowledge

of the firearm’s presence and the intent to exercise dominion and control of the firearm.” The

record again belies that argument given Billips’s testimony, which established that Bibbs

possessed the Glock even if the jury did not tie his possession to his drug-trafficking crimes.

The last “sufficiency” challenge relates to claims by Ronald Turner and Bibbs that the

government proved the existence of multiple conspiracies at trial, thus reflecting a fatal variance

from the indictment.

A variance occurs when evidence presented by the government at trial “proves facts

materially different from those alleged in the indictment.” United States v. Swafford, 512 F.3d

833, 841 (6th Cir. 2008) (citation omitted). A variance is “fatal” and requires reversal when the

discrepancy affects the defendant’s substantial rights. United States v. Hurst, 951 F.2d 1490, 1501

(6th Cir. 1991) (adding that “[s]ubstantial rights are affected only when a defendant shows

prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the

indictment’s sufficiency to bar subsequent prosecutions” (internal quotation marks omitted)).

-26- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

“Conspiracies to distribute narcotics, which normally involve numerous sales and resales

of drugs until they reach the ultimate consumers, are often ‘chain’ conspiracies.” United States v.

Warner, 690 F.2d 545, 549 (6th Cir. 1982). For example, we have held that a “single chain

conspiracy” existed when a defendant “obtained large amounts of marijuana from a source in

Mexico, used a driver to transport the marijuana to Tennessee, and then sold or fronted the

marijuana to others, who in turn resold or fronted the marijuana.” United States v. Vaughan, 512

F. App’x 459, 461 (6th Cir. 2013) (per curiam). The same was true when other defendants worked

together to purchase drugs, evade law enforcement, and “repeatedly engaged in regular, high-

volume drug sales.” United States v. Caver, 470 F.3d 220, 233 (6th Cir. 2006). And “evidence of

repeat purchases from a single source and large volumes of narcotics creates an inference of

conspiracy.” United States v. Pritchett, 749 F.3d 417, 431 (6th Cir. 2014) (citation omitted).

“The principal considerations in determining the number of conspiracies are the existence

of a common goal, the nature of the scheme, and the overlapping of the participants in various

dealings.” United States v. Smith, 320 F.3d 647, 652 (6th Cir. 2003). “To prove a single

conspiracy, the government need only show that each alleged conspirator had knowledge of and

agreed to participate in what he knew to be a collective venture directed toward a common goal.”

Id. at 653. Viewing the evidence in the light most favorable to the government, a rational juror

could conclude that defendants had knowledge of, and agreed to participate in, a single,

overarching conspiracy to obtain and sell numerous types and quantities of illicit drugs.

Begin with Ronald Turner. His role was not, as he suggests, just having conversations with

and giving “advice” to his brother concerning Alim’s “drug trafficking crimes.” The evidence

adduced at trial reflects Ronald’s extensive role in directing the entire conspiracy: (1) he was the

link to one of the gang’s major drug sources, “Pelon”; and (2) he helped guide how drugs were

-27- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

purchased and sold. Based on this and other evidence at trial, a rational juror could conclude that

he adopted the conspiracy’s main objective to traffic drugs and was generally aware of others’

criminal activities.

The same goes for Bibbs. Although he contends he conspired only with Billips to sell only

heroin, a rational juror could conclude that Bibbs’s participation was not so limited, considering

the evidence discussed above for his sufficiency challenge to his conspiracy-to-distribute

conviction. In the district court’s words, “[a]t the very least, the evidence establishes that [Bibbs]

knew that Billips was engaged in drug trafficking activities, that Billips had a source of supply in

Knoxville (Turner), and that he and Billips could sell heroin obtained from Turner together. . . .

Billips is the link between defendant and the larger conspiracy, and the fact that he did not know

other co-conspirators is irrelevant.”

For these reasons, defendants’ sufficiency-of-the-evidence challenges are without merit.

C.

Ronald Turner challenges, for the first time, the district court’s conspiracy-liability

instruction. When a defendant fails to object to a jury instruction in district court, we review for

plain error. United States v. Hofstetter, 80 F.4th 725, 730 (6th Cir. 2023). “In the context of

challenges to jury instructions, plain error requires a finding that, taken as a whole, the jury

instructions were so clearly erroneous as to likely produce a grave miscarriage of justice.” United

States v. Semrau, 693 F.3d 510, 528 (6th Cir. 2012) (citation omitted).

The district court gave a conspiracy-liability instruction, which explained that defendants

could be convicted of either charged conspiracy (drug trafficking and money laundering) in two

ways: first, if they “personally committed or participated in these crimes” and “knowingly and

-28- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

voluntarily joined the conspiracy”; and second, by being responsible for the acts of the other

conspiracy members that were within the scope of the conspiracy agreement and helped advance

the conspiracy. Ronald argues that the latter portion of this instruction is erroneous because so-

called Pinkerton liability—which “allows members of a conspiracy to be held liable for reasonably

foreseeable substantive offenses committed by coconspirators in furtherance of the conspiracy,”

United States v. Woods, 14 F.4th 544, 552 (6th Cir. 2021)—does not apply to inchoate crimes. He

further argues that the instruction allowed the jury to, in his words, “convict [him] of the narcotics

and money laundering conspiracies merely through his participation in the other conspiracy.”

We cannot agree. Though conspiracy members may be liable for only “substantive

offenses” committed by their co-conspirators (not for inchoate offenses such as conspiracy or

attempt), United States v. Hamm, 952 F.3d 728, 744 (6th Cir. 2020), the instruction here did not

allow the jury to convict Ronald of either conspiracy based on his participation in the other

conspiracy. The instruction clearly stated that, for the jury to convict on conspiracy, it needed to

find “that the defendant was a member of the conspiracy charged in the relevant count of the

indictment.” (Emphasis added). In other words, the jury could not convict him (through Pinkerton

liability) of the drug-conspiracy count based on his participation in the money-laundering

conspiracy, and vice versa. Therefore, the district court did not err (let alone plainly so) in giving

this unobjected-to instruction to the jury. United States v. Buchanan, 933 F.3d 501, 508 (6th Cir.

2019). He is not entitled to relief on this issue.

D.

The operative indictment charged Bibbs with three firearms counts: two counts of

possessing firearms in furtherance of a drug-trafficking crime (counts two and 13); and one count

of being a felon in possession of a firearm (count 15). The jury acquitted Bibbs on the two

-29- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

possession-in-furtherance-of charges but convicted him of being a felon in possession. Bibbs

argues the jury’s verdict was inconsistent and thus rises to the level of “arbitrariness or

irrationality” meriting relief. United States v. Randolph, 794 F.3d 602, 610 (6th Cir. 2015)

(citation omitted). We disagree.

“[I]nconsistent verdicts are constitutionally tolerable.” Dowling v. United States, 493 U.S.

342, 353–54 (1990). And, largely because “a criminal defendant already is afforded protection

against jury irrationality or error by the independent review of the sufficiency of the evidence

undertaken by the trial and appellate courts,” United States v. Powell, 469 U.S. 57, 67 (1984),

inconsistent verdicts “generally are not reviewable,” Randolph, 794 F.3d at 610. But there are two

exceptions: (1) if the verdict is “marked by such inconsistency as to indicate arbitrariness or

irrationality,” United States v. Lawrence, 555 F.3d 254, 263 (6th Cir. 2009); and (2) “where a

guilty verdict on one count necessarily excludes a finding of guilt on another, i.e. a mutually

exclusive verdict,” Randolph, 794 F.3d at 610–11 (internal quotation marks omitted).

According to Bibbs, his acquittal on the two possession-in-furtherance-of charges is

inconsistent with his felon-in-possession conviction because all three charges included possession

of a firearm on July 25, 2019. But there is no inconsistency—the former required the jury to link

Bibbs’s firearm possession to drug-trafficking activities, while the latter needed the jury only to

conclude that Bibbs’s possessed a firearm. Compare 18 U.S.C. § 924(c)(1)(A), with § 922(g)(1).

The jury’s verdict reflects its finding that Bibbs possessed a firearm, just not in furtherance of his

drug-trafficking crimes; there is nothing inconsistent about that conclusion. And even if otherwise,

it does not rise to the level of being arbitrary or irrational.

-30- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

E.

Stewart contends that the government engaged in prosecutorial misconduct by misleading

the jurors in questioning and closing argument regarding the cooperating witnesses’ sentencing

exposure.

We apply a two-step inquiry to resolve questions of prosecutorial misconduct. “First, we

determine whether prosecutorial statements allegedly constituting misconduct were improper.

Next, if we find impropriety, we ‘then determine whether the improprieties were flagrant such that

a reversal is warranted.’” United States v. Eaton, 784 F.3d 298, 309 (6th Cir. 2015) (citation

omitted). Under this second prong of the analysis, we consider four factors: “(1) whether the

conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2)

whether the conduct or remarks were isolated or extensive; (3) whether the remarks were

deliberately or accidentally made; and (4) whether the evidence against the defendant was strong.”

United States v. Modena, 302 F.3d 626, 635 (6th Cir. 2002) (citation omitted).

We review the challenged statements “within the context of the trial to determine whether

such comments amounted to prejudicial error.” United States v. Carter, 236 F.3d 777, 783 (6th

Cir. 2001). We also give “wide latitude to a prosecutor during closing argument, analyzing

disputed comments in the context of the trial as a whole and recognizing that inappropriate

comments alone do not justify reversal where the proceedings were otherwise fair.” United States

v. Henry, 545 F.3d 367, 377 (6th Cir. 2008) (internal quotation marks omitted). Put differently,

“a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments

standing alone, for the statements or conduct must be viewed in context; only by so doing can it

be determined whether the prosecutor’s conduct affected the fairness of the trial.” United States

-31- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

v. Young, 470 U.S. 1, 11 (1985). Because Stewart did not preserve this issue for appeal, we review

for plain error. United States v. Boyd, 640 F.3d 657, 669 (6th Cir. 2011).

Stewart contends the government elicited cooperating witnesses’ testimony that he says

“was designed to leave the jury with the impression that each witness was likely to get a huge

sentence despite their cooperation and regardless of whether they testified to the government’s

version of the facts.” According to Stewart, Christopher Hounschell—a main methamphetamine

source—is the exemplar. Hounschell testified that he pleaded guilty pursuant to a plea agreement,

agreed to testify against his co-defendants, and faced a twenty-year mandatory-minimum prison

term. He then detailed the terms of his plea agreement, which is the part that Stewart finds

objectionable:

Q. What do you understand your obligation to be under this plea agreement? A. To tell the truth. Q. And if you tell the truth, what do you understand the obligation of the United States to be when it comes time for you to be sentenced? A. Give me my time. Q. Okay. At your sentencing, do you have an expectation that the United States will convey to Judge Varlan your cooperation? A. Yes, sir. Q. Letting him know what you did. A. Yes, sir. Q. Have you been sentenced yet in this case? A. No, sir. Q. And other than me agreeing to let Judge Varlan know about the nature and extent of your cooperation, have you received any other promises in this case? A. No, sir.

In closing, the prosecutor highlighted Hounschell’s sentencing exposure:

So all of these, you know, the pejorative way in which the defense attorneys cast the plea bargaining process here, they said it’s gifts. Remember, gifts from the government. Chris Hounschell is looking at close to 30 years’ minimum mandatory. If that’s a gift, I’d hate to see what a penalty is; but even with that, if Chris Hounschell lies, that’s what he said, plea agreement goes away. Perjury.

-32- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

Stewart contends that these statements were reversible error because the jury was not informed

how a defendant can avoid a mandatory minimum sentence via cooperation through a U.S.S.G.

§ 5K1.1 motion by the government and was therefore left with the impression that the cooperating

defendants were going to serve mandatory sentences. (Hounschell was ultimately sentenced to

160 months.)

There was no plain error here mandating reversal. We normally condone the government’s

use of witness plea agreements, see United States v. Trujillo, 376 F.3d 593, 608–09 (6th Cir. 2004);

see also United States v. Wells, 623 F.3d 332, 341 (6th Cir. 2010), and there was nothing improper

with the sentencing-exposure testimony elicited by the government.4 The record does not reflect

that the government improperly suggested the cooperating witnesses could not go below their

mandatory-minimum sentences. See United States v. Morris, 498 F.3d 634, 639 (7th Cir. 2007)

To the extent Stewart contends the government needed to explain the § 5K1.1 process, no binding

caselaw requires that. Cf. United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015) (“A lack

of binding case law that answers the question presented will also preclude our finding of plain

error.”). And regardless, that process was presented to the jury on cross examination and in closing

arguments.

To be sure, the prosecutor stated Hounschell was “looking at close to 30 years’ mandatory

minimum,” when all he was facing was 20. But that impropriety was not so flagrant to warrant

reversal—it appears to have been an accidental and isolated misstatement and Stewart does not

4 Stewart’s brief lists those witnesses and what they testified their sentencing exposure to be, but, with the exception of Hounschell, it does not otherwise specifically identify problematic testimony. Stewart’s argument as to those five—Camaron Billips, Michael Stewart, Seth Curtis, Joshua Carmley, and Kiante Cooper—is perfunctory and therefore forfeited. United States v. Hendrickson, 822 F.3d 812, 829 n.10 (6th Cir. 2016). And regardless, their testimony is of a piece with Hounschell’s. -33- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

contend that this statement undermined the otherwise strong evidence against him. See Eaton, 784

F.3d at 309; Modena, 302 F.3d at 635.

F.

For these reasons, none of defendants’ various trial-related issues are meritorious.

IV.

Finally, defendants raise various issues regarding their sentences, which span from

challenges under the Eighth Amendment to the sentences’ procedural and substantive

reasonableness. By any measure, defendants all received lengthy sentences (with most receiving

life). Whether young adults in their 20s should presumptively spend the rest of their lives in prison

for drug trafficking and related offenses is a serious question. But it is a question of policy—one

for Congress, the Sentencing Commission, and ultimately the American people to decide. As set

forth next, we reject defendants’ sentencing arguments based on our binding Eighth Amendment

caselaw, the deference we must give to within-Guidelines sentences, and the district court’s well-

articulated consideration of the appropriate sentencing factors under 18 U.S.C. § 3553(a) when it

concluded that defendants’ serious crimes warranted serious sentences.

Gilmore and Stewart were between 19 and 21 years old when they committed their offenses

of conviction and were both sentenced to life in prison plus five years (due to the mandatory

consecutive nature of the sentences for their § 924(c) convictions). They assert their sentences

violate the Eighth Amendment for two reasons: (1) they were too young to receive life sentences,

and (2) their sentences were unconstitutionally disproportionate.

We review for plain error, for neither Gilmore nor Stewart raised an Eighth Amendment

argument in their sentencing memoranda or at sentencing. Although Gilmore argued that he

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should receive a lighter sentence because his brain was still developing when he committed his

crimes, that argument was never tied to the Eighth Amendment until his briefs on appeal. Instead,

he made this argument in the context of requesting a downward variance—a different basis for

invoking his age. That framing of the issue did not give the district court an opportunity to decide

whether Gilmore’s eventual sentence violated the Eighth Amendment, especially because the

Eighth Amendment was never mentioned in Gilmore’s sentencing memorandum or at his

sentencing hearing. See United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004). As for Stewart,

his defense counsel did not mention the Eighth Amendment in his sentencing memorandum, and

she did so only in passing at sentencing, asserting that, in her mind, the government’s proposed

life sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

That offhand comment was not elaborated on further and came in the context of arguing that

defense counsel did not “see how [a life sentence] would at all meet the sentencing mandate of

§ 3553(a) by being a sentence that’s . . . not greater [than] necessary to make sure that it deters the

defendant and meets the goals of sentencing.” Consequently, neither Gilmore nor Stewart raised

their Eighth Amendment arguments before the district court. We therefore review these Eighth

Amendment arguments for plain error. See, e.g., United States v. Droganes, 728 F.3d 580, 590–

91 (6th Cir. 2013) (holding that we review unpreserved constitutional arguments for plain error);

United States v. Huntington Nat’l Bank, 574 F.3d 329, 332 (6th Cir. 2009) (“To preserve the

argument, then, the litigant not only must identify the issue but also must provide some minimal

level of argumentation in support of it.”).

“Plain errors are limited to those harmful ones that are so rank that they should have been

apparent to the trial judge without objection, or that strike at the fundamental fairness, honesty, or

public reputation of the trial.” United States v. Henning, 286 F.3d 914, 920 (6th Cir. 2002) (citation

-35- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

omitted). “Plain error is defined as an egregious error, one that directly leads to a miscarriage of

justice.” Id. at 921 (citation omitted). Thus, Gilmore and Stewart “must show (1) error (2) that

was obvious or clear (3) that affected [their] substantial rights and (4) that affected the fairness,

integrity, or public reputation of the judicial proceedings.” United States v. Phillips, 516 F.3d 479,

487 (6th Cir. 2008) (internal quotation marks omitted). “This is a heavy burden for [them] to bear,

for the plain error doctrine is to be used sparingly, only in exceptional circumstances, and solely

to avoid a miscarriage of justice.” Id. (internal quotation marks omitted).

Binding precedent forecloses Gilmore and Stewart’s age-based argument. They were over

18 years old when they committed the offenses of conviction. Precedent dictates that, unlike

juveniles, they fall on the adult side of the Eighth Amendment’s “bright line” and cannot rely on

their youth to invoke the Eighth Amendment. United States v. Marshall, 736 F.3d 492, 497–500

(6th Cir. 2013); see also In re Manning, 24 F.4th 1107, 1109 (6th Cir. 2022) (order) (reiterating

the “bright line” discussed in Marshall).

Their proportionality arguments fare no better. We generally consider three factors when

determining whether a sentence is so disproportionate that it violates the Eighth Amendment:

“(1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other

criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime

in other jurisdictions.” United States v. Abdulmutallab, 739 F.3d 891, 906 (6th Cir. 2014) (internal

quotation marks omitted). Consideration of the second and third factors “is appropriate only in

the rare case in which a threshold comparison of the crime committed and the sentence imposed

leads to an inference of gross disproportionality.” Id. (internal quotation marks omitted). “When

evaluating the gravity of the offense, a court may consider the harm caused or threatened to the

victim or society, and the culpability of the offender.” Id. (internal quotation marks omitted). And

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we have adopted a “narrow proportionality principle,” under which “there is no requirement of

strict proportionality; the [E]ighth [A]mendment is offended only by an extreme disparity between

crime and sentence.” Id. at 906–07 (citations omitted). Indeed, “comparative proportionality is

not constitutionally mandated.” United States v. Layne, 324 F.3d 464, 474 (6th Cir. 2003).

Generally, a “sentence within the statutory maximum . . . does not constitute cruel and

unusual punishment” because “[w]e grant substantial deference to legislative determinations of the

types and limits of punishments for crimes.” United States v. Sherrill, 972 F.3d 752, 773 (6th Cir.

2020) (citations omitted). We have even gone a step further when reviewing within-Guidelines

sentences, holding that “an Eighth Amendment challenge must fail if a defendant receives a

sentence within the guideline range . . . when the guideline range contemplates the gravity of the

offense.” Abdulmutallab, 739 F.3d at 907.

The Guidelines recommend life in prison for any defendant with an offense level of 43,

regardless of the defendant’s criminal history. U.S.S.G. ch. 5, pt. A (Sentencing Table); Sherrill,

972 F.3d at 773. And in the “rare” circumstance in which an offense level is greater than 43, the

Guidelines treat the offense level as 43. U.S.S.G. ch. 5, pt. A, cmt. n.2. That rare circumstance

applied to Gilmore and Stewart because of the gravity of their offenses—they participated in a

large conspiracy that distributed a highly addictive and harmful drug (methamphetamine) in such

amounts that placed their offense level in the highest drug-weight category contemplated by the

Guidelines. While sentencing Gilmore and Stewart, the district court recognized this serious

conduct while also expressly considering their youth. It was not egregious for the district court to

impose within-Guidelines sentences of life imprisonment, so their sentences did not offend the

Eighth Amendment’s prohibition against cruel and unusual punishment. See Sherrill, 973 F.3d at

773.

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We now turn to defendants’ individual arguments regarding their respective sentences. We

review sentences for reasonableness, using an abuse-of-discretion standard. United States v.

Jeross, 521 F.3d 562, 569 (6th Cir. 2008). “Reasonableness review has both substantive and

procedural components.” United States v. Keller, 498 F.3d 316, 322 (6th Cir. 2007). The

procedural component requires us to ensure that the district court: “(1) properly calculated the

applicable advisory Guidelines range; (2) considered the other [18 U.S.C.] § 3553(a) factors as

well as . . . arguments for a sentence outside the Guidelines range; and (3) adequately articulated

its reasoning for imposing the particular sentence chosen.” United States v. Bolds, 511 F.3d 568,

581 (6th Cir. 2007). In evaluating the procedural reasonableness of a defendant’s sentence, “we

review the district court’s factual findings for clear error and its legal conclusions de novo.” United

States v. Angel, 576 F.3d 318, 320 (6th Cir. 2009). And the substantive component requires us to

consider whether a defendant’s sentence “is too long” because the district court “placed too much

weight on some of the § 3553(a) factors and too little on others.” United States v. Rayyan, 885

F.3d 436, 442 (6th Cir. 2018). A within-Guidelines sentence is presumptively reasonable. United

States v. Vonner, 516 F.3d 382, 389–90 (6th Cir. 2008) (en banc).

Alim Turner was convicted of: (1) conspiracy to distribute various drugs (count one);

(2) aiding and abetting the possession of firearms in furtherance of a drug-trafficking crime (count

two); (3) conspiracy to commit money laundering (count three); (4) aiding and abetting the

50 possession with intent to distribute methamphetamine (count four); (5) distribution of 50 grams

or more of methamphetamine (count eight); (6) possession of a firearm in furtherance of a drug-

trafficking crime (count nine); and (7) distribution of five grams or more of methamphetamine

-38- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

(count 18). The district court calculated Alim’s offense level at 48, which it then reduced to the

maximum level of 43 and combined with his Criminal History Category of IV to produce a

Guidelines range of life in prison, plus two mandatory consecutive five-year sentences for the

§ 924(c) offenses (counts two and nine). The court then imposed a life-plus-ten-years sentence.

Alim challenges only the substantive reasonableness of his sentence. In imposing his

sentence, the district court underscored the depth of Alim’s involvement in overseeing a violent

gang that used firearms to distribute massive amounts of methamphetamine and other illegal drugs.

In the district court’s words, he engaged in “extremely serious offense conduct” while under

supervision for a prior drug-related offense. The district court also considered the other various

§ 3553(a) factors, detailing, for example, Alim’s history and characteristics; the need to promote

respect for the law and just punishment; deterrence; public protection; and the provision of needed

education, care, and treatment. In short, the district court gave a reasoned decision for imposing a

life sentence while considering and rejecting Alim’s arguments for a lesser sentence. Through the

“highly deferential” review standard for substantive reasonableness challenges, Rayyan, 885 F.3d

at 442, the district court’s sentencing of Alim stands on firm ground.

Alim resists, asserting a greater-than-life sentence cannot be substantively reasonable

because it circumvents rehabilitation. True, § 3553(a)(2)(D) requires a district court to consider

“the need for the sentence imposed . . . to provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in the most effective manner,”

but it does not mandate that rehabilitation supersede other considerations. Rather, under

substantive-reasonableness review, our role is to consider whether the district court’s balancing of

all the § 3553(a) factors fell outside the wide berth of abuse-of-discretion review. See Rayyan,

885 F.3d at 442. And here, the district court considered rehabilitative efforts, yet it still found a

-39- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

within-Guidelines sentence of life imprisonment to be appropriate considering the enormity of

Alim’s offense conduct and the escalating nature of his criminal history. In short, we discern no

abuse of discretion in the district court’s decision to weigh heavily the severity of Alim’s crimes

over his mitigating circumstances.

Ronald Turner was convicted of: (1) conspiracy to distribute various drugs (count one);

(2) conspiracy to commit money laundering (count three); and (3) aiding and abetting the

attempted possession with intent to distribute methamphetamine (count four). The district court

calculated his offense level at 48, which it then reduced to a maximum level of 43 and combined

with his Criminal History Category of IV to produce a Guidelines range of life in prison. The

court then imposed a life sentence. Ronald raises two procedural reasonableness challenges and

asserts that his sentence is substantively unreasonable.

For sentencing purposes, Ronald’s convictions were grouped into two categories: (1) his

drug counts and (2) his conspiracy-to-commit-money-laundering conviction. For the former,

Ronald’s base-offense level was 38, which the district court adjusted upward to 42 after applying

two specific-offense characteristics (distributing controlled substances in prison under U.S.S.G.

§ 2D1.1(b)(4) and involving a minor under § 2D1.1(b)(16)(B) after having received an

aggravating-role adjustment under § 3B1.1). These enhancements were important for how the

district court calculated Ronald’s base-offense level for conspiracy to commit money laundering.

Under U.S.S.G. § 2S1.1(a), the base-offense level for money-laundering conspiracy is

“[t]he offense level for the underlying offense from which the laundered funds were derived.” The

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application note to this Guidelines provision states that, “application of any Chapter Three

adjustment shall be determined based on the offense covered by this guideline (i.e., the laundering

of criminally derived funds) and not on the underlying offense from which the laundered funds

were derived.” U.S.S.G. § 2S1.1 cmt. n.2(C). Following these directives, the district court looked

to the adjusted-offense level from Ronald’s drug counts (42) to calculate his base-offense level for

the money-laundering-conspiracy conviction. It then found applicable two more enhancements,

bringing that adjusted-offense level to 48. So, being the higher of the two, his money-laundering-

conspiracy conviction drove his Guidelines calculation.

Ronald argues the district court erred in calculating the base-offense level for his money-

laundering-conspiracy conviction by including what he says are Chapter Three adjustments from

his underlying offense (i.e., the drug counts), in violation of Application Note 2. His argument

targets the enhancement he received under § 2D1.1(b)(16)(B) for involving a minor (not a Chapter

Three adjustment) because that enhancement can be applied only if a defendant also receives an

aggravating-role enhancement under § 3B1.1 (a Chapter Three adjustment).

Because Ronald failed to advance that argument below, we review the district court’s

calculation for plain error. Bostic, 371 F.3d at 871. Ronald disagrees, arguing that his counsel did

object to the application of § 3B1.1. That much is true—he took issue with his classification as an

organizer/leader of the conspiracy that garnered a four-level enhancement. But he never asserted

“with [a] reasonable degree of specificity which would have adequately apprised the trial court”

that he objected to application of the enhancement under § 2D1.1(b)(16)(B) for purposes of

calculating his base-offense level for his money-laundering-conspiracy conviction. Id. So plain-

error review applies.

-41- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

The district court did not err, plainly or otherwise. Ronald received two enhancements for

his drug counts, both under Chapter Two. True, he was eligible for the involving-a-minor

enhancement under § 2D1.1(b)(16)(B) only because he received an aggravating-role adjustment

under Chapter Three for the money-laundering offense. But the involving-a-minor enhancement

itself is not a Chapter Three adjustment. The district court first appropriately calculated the base-

offense level for Ronald’s conspiracy-to-commit-money-laundering conviction under

§ 2S1.1(a)(1). It then applied an aggravating-role adjustment to that base-offense level, which

escalated Ronald’s offense level to 48. Following the Guidelines’ cross-referenced incorporations,

the district court accurately determined Ronald’s base-offense level for his money-laundering

conviction. See U.S.S.G. § 2S1.1 cmt. n.2(C).

Section 3B1.1(a) of the Guidelines increases a defendant’s base-offense level by four “[i]f

the defendant was an organizer or leader of a criminal activity that involved five or more

participants or was otherwise extensive.” To discern leadership status, a court considers various

factors, including: “the exercise of decision making authority, the nature of participation in the

commission of the offense, the recruitment of accomplices, the claimed right to a larger share of

the fruits of the crime, the degree of participation in planning or organizing the offense, the nature

and scope of the illegal activity, and the degree of control and authority exercised over others.”

U.S.S.G. § 3B1.1 cmt. n.4. “A district court need not find each factor in order to warrant an

enhancement.” United States v. Castilla-Lugo, 699 F.3d 454, 460 (6th Cir. 2012). The

government must establish that this adjustment applies by a preponderance of the evidence. United

States v. Mack, 808 F.3d 1074, 1085 (6th Cir. 2015). We review a district court’s factual findings

-42- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

for clear error and its legal conclusion that a person was an organizer or leader under § 3B1.1

deferentially. United States v. Washington, 715 F.3d 975, 982–83 (6th Cir. 2013).

The presentence report recommended that the district court apply a § 3B1.1(a)

leader/organizer enhancement when calculating Ronald’s offense level for conspiracy to commit

money laundering. Over Ronald’s objection, the district court agreed, finding that there was

“ample evidence in the record to show by a preponderance of the evidence that defendant was a

leader or organizer of the instant offenses.” (Emphasis Added). To support this finding, the district

court relied heavily on intercepted phone calls that showed Ronald “had at least some degree of

decisionmaking authority regarding the purchasing, as well as pricing of drugs for redistribution

in the instant offenses.” And it noted Ronald was the “link” to the source of methamphetamine

supply, instructed others on what to do, and even recruited others (including minors) to facilitate

the gang’s efforts.

On appeal, Ronald argues that “[w]hile there was evidence in the record that [he] may have

had an aggravating role in a drug conspiracy, there was no evidence of [his] organizing role in the

money laundering conspiracy, or that the money laundering conspiracy involved 5 or more

persons.” We disagree. For one, any error would be harmless because, to quote the government,

“[i]f the four-level aggravating-role enhancement were applied to the drug conspiracy and not the

money-laundering offense, [Ronald]’s total offense level would be 46—still capped at 43 [and thus

h]is Guidelines range would remain the same.” But for another, the sentencing transcript makes

clear that the district court made sufficient findings for both conspiracies. Consider just this brief

description by the district court:

Again, throughout numerous calls involving the conspiracy, [Ronald] instructed Alim Turner to send him various amounts of money that had been obtained through the drug conspiracy often to pay sources of supply.

-43- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

And, additionally, going back to the June 17, 2019 recorded call, [Ronald] instructed Alim Turner on how to maintain drug proceeds, instructed him to keep such money split between a bank account and a safe to avoid detection. [Ronald] also instruct[ed] Alim Turner to set up a fake modeling business as an explanation for the funds he was obtaining from the drug distribution conspiracy.

Given these factual findings and the jury’s conviction of five defendants on the money-laundering-

conspiracy charge, Ronald’s argument here is without merit.

For these reasons, Ronald Turner’s sentence is procedurally reasonable.

Finally, Ronald Turner contends his within-Guidelines sentence is not substantively

reasonable due to the lack of a possibility of release and that such a sentence “is rarely imposed.”

In his view, this sentence was unreasonable given the short duration of his role in the conspiracy

(during which he was in prison) and his youth. We cannot agree.

When the district court imposed its sentence, it thoroughly considered the § 3553(a) factors

as they applied to Ronald. Begin (and mostly end) with his offense conduct. Ronald led a

conspiracy that trafficked at least 4.5 kilograms of pure methamphetamine and used children and

violence to do so. That conduct “speaks to the seriousness of defendant’s offense conduct and the

detrimental impacts of that conduct on the community in terms of the accumulation and

distribution of illegal and harmful drugs.” The district court acknowledged not only Ronald’s

difficult upbringing and youth, but also his escalating criminal conduct—including prior

convictions for attempted second-degree murder and selling cocaine within 1000 feet of a

preschool. For these and other reasons, the district court concluded that the within-Guideline

sentence—which itself was a “rare case[]” wherein the exceedingly high base-offense level was

-44- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

reduced to 43, see U.S.S.G. ch. 5, pt. A, cmt. n.2—was appropriate and Ronald has not overcome

the presumption of reasonableness we must give to his sentence.

Gilmore was convicted of: (1) conspiracy to distribute various drugs (count one);

(2) aiding and abetting the possession of firearms in furtherance of a drug-trafficking crime (count

two); (3) conspiracy to commit money laundering (count three); and (4) distribution of more than

five grams, but less than 50 grams, of methamphetamine (count 21). The district court calculated

Gilmore’s offense level at 46, which it then reduced to the maximum level of 43 and combined

with his Criminal History Category of III to produce a Guidelines range of life in prison plus a

mandatory consecutive five-year sentence for a § 924(c) offense (count two). The court then

imposed a life-plus-five-years sentence. Gilmore raises five procedural-reasonableness challenges

and asserts that his sentence is substantively unreasonable.

Gilmore was previously convicted of carjacking in Tennessee in violation of Tenn. Code

Ann. § 39-13-404. At sentencing in this case, the district court concluded that his Tennessee

carjacking conviction was a “serious violent felony,” so Gilmore’s mandatory-minimum sentence

for his drug-trafficking-conspiracy conviction (count one) increased from ten to fifteen years. See

18 U.S.C. § 3559(c)(2)(F); 21 U.S.C. § 802(58)(A); id. § 841(b)(1)(A). Gilmore contends this

conclusion was erroneous because his prior conviction satisfies neither the enumerated-offense

clause nor the elements clause of § 3559(c)(2)(F). But we need not consider the merits of his

argument because even if he were correct, any such error would be harmless.

-45- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

“Errors that do not affect the ultimate Guidelines range or sentence imposed are harmless

and do not require resentencing.” United States v. Cruz, 976 F.3d 656, 663 (6th Cir. 2020) (citation

omitted). The burden is on the government to demonstrate “to this Court with certainty that the

error at sentencing did not cause the defendant to receive a more severe sentence.” United States

v. Lanesky, 494 F.3d 558, 561 (6th Cir. 2007) (citation omitted). Although the government did

not raise a harmless-error argument here, we may do so sua sponte to “avoid[] futile proceedings

in the district court.” United States v. Butts, 40 F.4th 766, 774 (6th Cir. 2022). That is, if “we are

convinced that the error is harmless ‘upon review of a clear record,’ in other words, when we are

certain that any error did not affect the defendant’s sentencing outcome, we may conduct a

harmless-error analysis on our own accord.” Id. (internal citations omitted).

Based upon the record, we are convinced that the district court would not have imposed a

lower sentence had it not increased Gilmore’s mandatory-minimum sentence for his drug-

trafficking-conspiracy conviction from 10 to 15 years. That minimum requirement played no role

at sentencing (outside of discussing its application, the district court never mentioned it) and still

was drastically under the lifelong Guidelines range that was driven almost exclusively by the drug-

weight calculation. And as set forth below concerning Gilmore’s substantive-reasonableness

challenge, the district court gave significant weight to the extensive nature of Gilmore’s crimes,

so “there is nothing in the record to suggest that [this] enhancement . . . impacted the district court’s

sentencing decision in any meaningful way.” United States v. Aldridge, 98 F.4th 787, 799 (6th

Cir. 2024). Therefore, even if the district court erroneously raised the statutory mandatory

minimum for Gilmore’s drug-trafficking-conspiracy conviction by a mere five years, any such

error would not warrant remand because it would be harmless. Butts, 40 F.4th at 774–75; see also

United States v. Bennett, 2024 WL 966367, at *7 (6th Cir. Mar. 6, 2024) (“Nothing in the record

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indicates that the district court felt constrained by the ten-year mandatory minimum or that it would

have imposed a lesser sentence had it found the five-year mandatory minimum appropriate.”).

When a defendant is convicted of a drug-distribution conspiracy, a district court can “hold

a defendant accountable for drug quantities with which he was directly involved or that were

reasonably foreseeable to him as part of a criminal conspiracy.” United States v. Gardner, 32 F.4th

504, 524 (6th Cir. 2022) (internal quotation marks omitted). It may do so “based on physical

evidence or testimony.” United States v. Tisdale, 980 F.3d 1089, 1096 (6th Cir. 2020). The

government has the burden to prove drug quantity by a preponderance of the evidence, United

States v. Castro, 960 F.3d 857, 868 (6th Cir. 2020), and we review a district court’s drug-weight

calculation for clear error, Tisdale, 980 F.3d at 1096.

Drug weight drove Gilmore’s base-offense-level calculation. Crediting testimony by

Christopher Hounschell and intercepted phone calls between Alim Turner and Gilmore, the district

court attributed to Gilmore at least ten pounds of actual methamphetamine. More specifically, that

evidence showed that Hounschell shipped three packages of actual methamphetamine—three

pounds, five pounds, and five pounds—to Alim for distribution by the gang. Only the first and

third made it to Alim, as law enforcement intercepted the second package. Accordingly, the district

court concluded that Gilmore, “based on a very conservative estimate,” was “accountable for the

five pounds of methamphetamine intercepted by law enforcement and the subsequent five-pound

shipment for at least ten pounds of methamphetamine, which equates to 4.5 kilograms of

methamphetamine which exceeds the 4.5-kilogram quantity necessary for application of the base-

offense level of 38.”

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Gilmore contends no trial evidence linked him directly to the shipment and receipt of these

methamphetamine packages.5 But that argument ignores reasonable foreseeability—under

conspiracy principles, we attribute drug quantities to a defendant that were “reasonably

foreseeable” to him. See, e.g., id. at 1097. Given Gilmore’s extensive involvement with assisting

Alim as his “right-hand man” and the fact that other Vice Lords distributed large levels of

controlled substances (and as reflected in the district court’s application of an aggravating-role

enhancement discussed next), the district court did not clearly err in assessing Gilmore’s drug-

quantity responsibility.

Section 3B1.1(c) of the Guidelines increases a defendant’s base-offense level by two “[i]f

the defendant was an organizer, leader, manager, or supervisor in any criminal activity.” As

outlined above, district courts consider various factors—such as those listed in § 3B1.1 cmt. n.4—

to discern leadership status, and we review the relevant factual findings for clear error and ultimate

legal conclusion deferentially.

The district court found this enhancement applicable largely given Gilmore’s role in

helping facilitate the trafficking of drugs after Alim Turner’s arrest in July 2019. At Alim’s

direction, co-defendant (and cooperating witness) Kiante Cooper was to call either Gilmore or

Trey Turner (Alim’s 17-year-old brother) for help. Cooper called Gilmore, who patched in Alim,

who then “instructed [Gilmore] to collect various drug debts, to take Trey Turner to obtain money

from a safe, and to take the money and meet the methamphetamine source of supply to, ‘keep it

going.’” Alim called Gilmore his “right-hand man,” and Gilmore’s conduct reflects as much—he

5 He also argues it was wrong to attribute the five pounds of methamphetamine intercepted by law enforcement, but “intervention by law enforcement should not alter the amount for which the defendant is held responsible.” United States v. Vasquez, 352 F.3d 1067, 1074 (6th Cir. 2003). -48- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

used Alim’s phone to help collect drug debts in order to pay the source of the gang’s supply,

contacted the source himself, and eventually recruited another person to travel to meet the source.

Gilmore contends that imposing this enhancement was error, asserting his conduct was just

“ministerial” and that it was fortuitous that Cooper called Gilmore. Yet, Gilmore still followed

through, helping Alim continue the gang’s drug-trafficking activities and directing others while

doing so. True, Gilmore was not the gang’s true leader, but the aggravating-role enhancement

broadly applies to anyone who helps lead, in any way, a criminal conspiracy. See United States v.

Taylor, 85 F.4th 386, 391 (6th Cir. 2023) (“There can, of course, be more than one person who

qualifies as a leader or organizer of a criminal association or conspiracy.” (quoting U.S.S.G

§ 3B1.1 cmt. n.4)).

Section 2D1.1(b)(16)(B) of the Guidelines increases a defendant’s base-offense level for

drug-trafficking crimes if a defendant received an aggravating-role enhancement under § 3B1.1

and if he “involved” an individual less than 18 years of age in the offense.

The district court found this special-offense-characteristic enhancement applicable to

Gilmore based on the gang’s involvement of the Turners’ 17-year-old brother, Trey, with drug

activities. More specifically, Alim directed Gilmore to have Trey “obtain drug proceeds from

Alim Turner’s safe as well as to provide Trey . . . with a pair of pants containing drug money.” In

a later phone call with Stewart, Gilmore and Trey confirmed the amount of money in the safe.

Based on this evidence, the district court found that Gilmore’s conduct qualified for the

enhancement for two independent reasons: (1) Gilmore “specifically” involved Trey; and (2) the

gang’s prevalent use of minors to help traffic drugs was “reasonably foreseeable” to Gilmore. See,

-49- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

e.g., United States v. Rich, 14 F.4th 489, 495 (6th Cir. 2021) (discussing the application of co-

conspirator conduct to specific-offense enhancements).

Gilmore raises a few issues with this reasoning, none of which are persuasive. First, he

contends the involving-a-minor enhancement does not apply because he erroneously received an

aggravating-role enhancement. But as set forth above, the appropriateness of the aggravated-role

enhancement forecloses that argument. Second, Gilmore argues, “[t]here was no evidence

presented that Gilmore knew . . . that Alim’s brother was under 18.” Yet, Gilmore did not object

on that basis to the presentence report in district court. And regardless, the gang’s use of minors

(and Trey specifically) was well known to gang members—Alim and Ronald Turner had Trey sell

marijuana and heroin because it was “safer for him” to sell. Finally, Gilmore contends Trey was

already “involved” in the conspiracy, but that does not absolve Gilmore from “involving” Trey in

helping to launder the conspiracy’s drug money by breaking into Alim’s safe.

v.

Section 3C1.1 of the Guidelines increases a defendant’s base-offense level by two “[i]f (1)

the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution, or sentencing of the instant

offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of

conviction and any relevant conduct; or (B) a closely related offense.” “Obstructive conduct can

vary widely in nature, degree of planning, and seriousness,” and it includes “threatening,

intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or

indirectly, or attempting to do so.” U.S.S.G. § 3C1.1 cmt. n.3, 4(A). The government must

demonstrate that the obstruction-of-justice enhancement applies by a preponderance of the

evidence. United States v. Dunham, 295 F.3d 605, 609 (6th Cir. 2002).

-50- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

Two of Gilmore’s Facebook posts he made during trial formed the basis for this

enhancement. He posted the first on July 8, 2021, which was the evening of the second day of

trial. On that day, as part of its opening statement, the government “preview[ed] for the jury the

names and pictures of cooperating witnesses who would testify in the . . . trial.” Gilmore then

posted:

As Agent Stryker testified during Gilmore’s sentencing hearing, the middle finger emoji is short

for “fuck,” rats is a “slang term utilized for people who cooperate with the government and law

enforcement,” and the last emoji is one “of a person spit talking.”

He posted the second on December 17, 2021, after his conviction but before sentencing:

Agent Stryker explained this post as well: “So basically what the defendant is stating here on

Facebook is that if [cooperating witnesses are] confronted, they’re going to say they’re real.

They’re not going to cooperate until their name shows up on paperwork; in this case, it would be

discovery for trial. And then after that, they’re a rat. And then he says ‘FreeMe.’ Basically let

me out of prison.” Some discovery documents in this prosecution made it into the jails for one of

-51- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

the cooperators (Trevor Cox), so Agent Stryker interpreted Gilmore’s post as saying “he’s got the

paperwork and he’s verifying who is cooperating and who is not.”

Both posts were “public” and meant to intimidate “anybody willing to cooperate or testify

against [Gilmore] or anyone willing to cooperate with law enforcement.” Vice Lords members,

Stryker testified, view cooperators “[v]ery negatively,” and cooperators “usually receive . . . threats

of death.” In some instances, cooperators have been murdered, assaulted, and subjected to

intimidation tactics.

Relying on United States v. French, 976 F.3d 744, 749 (6th Cir. 2020), the district court

determined Gilmore’s posts raised significant “chilling of potential testimony” concerns even

though Gilmore did not specifically name any cooperating witnesses. By referring to “rats” just

after the first day of trial—before the cooperating co-defendants had testified—and just before his

sentencing, the district court concluded, “such statements could reasonably be interpreted as a

threat against anyone who cooperated with the government against [Gilmore].” Although we

review the district court’s legal interpretations de novo and its factual conclusions for clear error,

“the proper standard of review for the application of the guideline[s] to the facts is less apparent.”

Id. (citation omitted). But we need not consider what (if any) deference we give to the district

court’s factual application because even on de novo review, id., Gilmore’s challenge is without

merit.

On appeal, Gilmore argues his posts were “much ado about nothing” given his youth, the

ubiquitous nature of the term “rats” in today’s modern culture, and that “[n]o specific person was

named, identified, or called out.”6 We disagree. Public posts on Facebook about “rats” before a

6 He also belatedly asserts application of this enhancement constitutes double counting because he received, as part of his aggravating-role enhancement under § 3B1.1, a separate

-52- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

witness testifies “reasonably [can] be construed as a threat against anyone who would dare

cooperate with the Government.” Id. That Gilmore did not “name names” is unpersuasive, for

French makes clear that the nature of public posts that are targeted to specific witnesses can still

be interpreted broadly by any potential cooperator. See id. at 749–50.

vi.

For these reasons, Gilmore’s sentence is procedurally reasonable.

Finally, Gilmore contends his within-Guidelines, life-plus-five-years sentence is

substantively unreasonable.

As with the other defendants, at sentencing, the district court stressed the severity of

Gilmore’s offense conduct, namely, participating in a conspiracy that trafficked at least 4.5

kilograms of actual methamphetamine and other substances and that used firearms while doing so.

To that end, the district court emphasized Gilmore’s trafficking of pure methamphetamine and its

dramatic impact on society at large: “Methamphetamine, especially the pure form which

defendant stands convicted of conspiring to distribute is addictive, deadly, and on the rise.” It

acknowledged Gilmore’s difficult upbringing, mental-health issues, substance-abuse issues, and

educational background, but it also noted Gilmore’s significant criminal history (including

engaging in aggravated robbery and carjacking) and longtime association with Alim Turner and

Mahlon Prater. Based on these and other considerations, the district court found a within-

Guidelines sentence to be appropriate—he engaged both in serious crimes while on release from

his carjacking sentence and in conduct (namely, obstruction of justice) that did not reflect respect

enhancement under § 2D1.1(b)(16)(B) for involving a minor (discussed above). But he fails to sufficiently develop this argument or cite any supporting authority, rendering it forfeited. Hendrickson, 822 F.3d at 829 n.10. -53- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

for the law. So a lengthy sentence, the district court concluded, was required for deterrence and

protection of the public. To be sure, the district court acknowledged Gilmore’s youth when he

engaged in these crimes, but his age, in the district court’s eye, did not take “his case outside the

heartland of similar cases”—most of Gilmore’s co-defendants were of similar age, and “drug

distribution by offenders in their 20s is, unfortunately, not a rare occurrence.”

On appeal, Gilmore claims the district court viewed his conduct more harshly than that of

his co-defendants—Hounschell (a source of the gang’s methamphetamine) and Billips (a fentanyl

trafficker)—who arguably engaged in worse conduct. This argument is unpersuasive, for

§ 3553(a)(6) is concerned not with disparities between co-defendants, but “national disparities

between defendants with similar criminal histories convicted of similar criminal conduct.” United

States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008). So too is his “I was a young adult” argument,

for the district court appropriately considered Gilmore’s relative youth not only with his instant

conduct but also in the context of his escalating criminal history. Gilmore has not satisfied his

burden of establishing that the sentence imposed here reflects an abuse of discretion.

Stewart was convicted of: (1) conspiracy to distribute various drugs (count one); (2) aiding

and abetting the possession of firearms in furtherance of a drug-trafficking crime (count two);

(3) conspiracy to commit money laundering (count three); and (4) aiding and abetting the

attempted possession with intent to distribute methamphetamine (count four). The district court

calculated Stewart’s offense level at 45, which it then reduced to the maximum level of 43 and

combined with his Criminal History Category of I to produce a Guidelines range of life in prison

plus a mandatory consecutive five-year sentence for a § 924(c) offense (count two). The court

-54- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

then imposed a life-plus-five-years sentence. Stewart raises three procedural-reasonableness

challenges to this sentence and asserts that his sentence is substantively unreasonable.

Section 3C1.1 of the Guidelines increases a defendant’s base-offense level by two “[i]f (1)

the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution, or sentencing of the instant

offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of

conviction and any relevant conduct; or (B) a closely related offense.” The government must

demonstrate that the obstruction-of-justice enhancement applies by a preponderance of the

evidence. Dunham, 295 F.3d at 609. Here, the district court concluded that Stewart obstructed

justice by posting on Facebook—shortly after his trial but before sentencing—the names of seven

individuals who testified at trial, along with a rat emoji following each name.

On appeal, Stewart does not contest the district court’s finding that the conduct qualified

for the enhancement. Instead, he contends there was insufficient proof establishing that he posted

the message to Facebook because the account that posted the threat was named “Ushery Grissom,”

and at the time of the post, Stewart was in jail. We review the district court’s factual finding that

Stewart posted the message for clear error. See United States v. Thomas, 933 F.3d 605, 608 (6th

Cir. 2019).

At the sentencing hearing, the district court heard testimony from Agent Stryker, who

stated that he monitored Stewart’s Facebook account before, during, and after trial. At some point

after trial, the account’s name changed from “Ushery Stewart” to “Ushery Grissom,” with Grissom

being his mother’s maiden name. Stryker also testified about how contraband cell phones

-55- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

smuggled into jails allow inmates to access Facebook and that Stewart was overheard on a recorded

jail phone call after reviewing the PSR stating, “Me changing my name on Facebook doesn’t have

anything to do with the case” and “Me saying them people told, that don’t mean nothing.” In the

district court’s judgment, that evidence was enough to establish by a preponderance of the evidence

that Stewart authored the “rat” post.

Stewart claims this conclusion was erroneous, asserting that “[t]he government offered

only speculation and inferences upon inferences,” suggesting instead that it was far more plausible

that another individual could have logged onto Stewart’s account to make the post. Yet, as the

government persuasively asserts, this argument ignores Stewart’s own words that were captured

on a jailhouse recording, wherein he indicated he accessed the account: “Me changing my name

on Facebook” and “Me saying them people.” There is no clear error with the district court’s factual

finding that Stewart made the Facebook post in question.

Section 3B1.1(b) of the Guidelines increases a defendant’s base-offense level by three “[i]f

the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity

involved five or more participants or was otherwise extensive.” Again, district courts consider

various factors—such as those listed in § 3B1.1 cmt. n.4—to discern leadership status, and we

review the relevant factual findings for clear error and ultimate legal conclusion deferentially.

The district court concluded “ample evidence in the record . . . show[ed] by a

preponderance of the evidence that [Stewart] was a manager or supervisor of the instant offenses,”

focusing on Stewart’s direction of certain co-conspirators and his providing a direct link between

the conspiracy’s leader (Alim Turner) and its main source of methamphetamine supply

(Hounschell). It found that Stewart exerted control over at least three individuals: Gilmore (for

-56- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

instructing him “to collect $4,800 from another individual” and “to call the source of supply and

providing him with certain information”); Hounschell (for acting as an intermediary between him

and Alim); and Michael Stewart (for directing him “to drive to the Natchez residence in order to

obtain methamphetamine”). Moreover, the district court noted Stewart’s extensive relationship

with Alim—Stewart “regularly consulted with Alim . . . about obtaining and selling controlled

substances, specifically discussing prices and locations for sales.” In one instance that showed

“some level of decision-making authority within the drug-trafficking conspiracy,” Stewart even

instructed Alim “to call the source of methamphetamine supply in Nashville and try to negotiate a

better price for methamphetamine.” In another, Stewart discussed with Alim whether the

conspiracy should accept fifteen pounds of methamphetamine to distribute in sufficient time. And

after Alim’s arrest, Stewart worked with Gilmore “to have money delivered to the Nashville source

of supply to obtain more methamphetamine.”

On appeal, Stewart paints his involvement as just following directions from the Turner

brothers and argues he thus did not control others.7 But “there can, of course, be more than one

person who qualifies as a leader or organizer of a criminal conspiracy. Although [other defendants]

all played important roles in the operation, that does not exonerate [Stewart] from a sentencing

enhancement premised on [his] leadership actions.” United States v. Sadler, 750 F.3d 585, 594

(6th Cir. 2014) (internal quotation marks and alterations omitted). And, as set forth, the district

7 Stewart confusingly contends that he did not exercise any control over Alim. But the district court made no such finding, and it instead pointed to their working relationship to show Stewart’s significant involvement at the leadership level of the conspiracy. -57- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

court appropriately captured the power dynamic between Stewart, Gilmore, and Hounschell to

apply an aggravating-role enhancement.8

Stewart’s last procedural challenge relates to his contention that the district court did not

adequately explain why it sentenced Stewart to life in prison instead of 470 months, which is the

length of time the Sentencing Commission uses as a statistical proxy for life sentences. See U.S.

Sent’g Comm’n, 2023 Sourcebook of Federal Sentencing Statistics, App’x A at 175 (2023) (“In

cases where the court imposes a sentence of life imprisonment, a numeric value is

necessary . . . . Accordingly, life sentences are reported as 470 months, a length consistent with

the average life expectancy of individuals sentenced for federal offenses given the average age of

those persons.”). In his view, the district court’s selection of a life sentence instead of 470 months

represented a “de facto upward variance” that needed to be explained. Because Stewart failed to

object to the district court’s explanation below, we review for plain error. United States v. Hymes,

19 F.4th 928, 933 (6th Cir. 2021).

A sentence can be procedurally unreasonable when a district court fails to adequately

explain the chosen sentence. See Gall v. United States, 552 U.S. 38, 50 (2007). Here, the district

court sufficiently addressed why it concluded a life and not a 470-month term of imprisonment

was appropriate: doing otherwise would “elevate the Commission’s statistical data over the text

of the Guidelines themselves.” Hymes, 19 F.4th at 936. That explanation was sufficient to satisfy

procedural-reasonableness review under Gall. And even if not, the plain-error lens commands

8 Stewart separately objects to the district court’s determination that he exercised control over his father, Michael, claiming that he merely helped his father secure methamphetamine for his own personal use. But Stewart did more than that—he directed his father’s travel to the gang’s stash house on Natchez Street to obtain “a gallon sized bag” of actual methamphetamine. -58- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

affirmance—no published caselaw from this circuit requires a district court to distinguish between

the Guidelines’ life-in-prison recommendations and the Sentencing Commission’s use of 470

months as a statistical proxy for life imprisonment. Cf. Al-Maliki, 787 F.3d at 794.

For these reasons, Stewart’s sentence is procedurally reasonable.

Stewart asserts his within-Guidelines sentence of life imprisonment (plus a mandatory five-

year consecutive sentence for a § 924(c) count) is substantively unreasonable. We disagree.

When the district court imposed Stewart’s sentence, it emphasized the extreme seriousness

of Stewart’s conduct—he helped facilitate the distribution of at least 4.5 kilograms of actual

methamphetamine, and he used firearms while doing so. In the district court’s words, “this is not

an average drug case.” It also noted Stewart’s prior conviction for carjacking as a 16-year-old,

and it expressed concern about the escalation of his behavior, which led to these convictions and

his subsequent obstruction of justice. But it also acknowledged Stewart’s difficult upbringing,

highlighting that his father—and co-conspirator who testified against him—sold drugs during his

childhood.

Stewart cannot overcome the presumption of reasonableness we must give to his within-

Guidelines sentence. He complains, for example, that the district court did not appropriately

consider his relative youth and being led astray by his father at an early age. But given the district

court’s consideration of these factors in light of Stewart’s conduct and the deference owed to the

district court to fashion an appropriate sentence, Stewart’s sentence is substantively reasonable.

See Rayyan, 885 F.3d at 442.

-59- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

Bibbs was convicted of: (1) conspiracy to distribute heroin (count one); (2) being aided

and abetted by another person to possess with the intent to distribute heroin (count 12); and

(3) being a felon in possession of a firearm (count 15). The district court calculated Bibbs’s offense

level at 20 and combined it with his Criminal History Category of VI to produce a Guidelines

range of 70 to 87 months. The court then varied upward and imposed a 120-month sentence.

Bibbs raises three procedural-reasonableness challenges and asserts that his sentence is

Section 2D1.1(b)(12) of the Guidelines enhances a defendant’s base-offense level by two

if a “defendant maintained a premises for the purpose of manufacturing or distributing a controlled

substance.” This so-called “drug-house enhancement” applies when a defendant “(1) knowingly

(2) opens or maintains any place (3) for the purpose of manufacturing or distributing a controlled

substance.” United States v. Johnson, 737 F.3d 444, 447 (6th Cir. 2013). Over Bibbs’s objection,

the district court applied this enhancement after it concluded that Bibbs maintained his residence

for the purpose of trafficking heroin. Bibbs challenges this enhancement on appeal, contesting

only the third element.

Law enforcement officials discovered 1.2 grams of heroin at Bibbs’s house, which he

claims reflects only a personal use amount insufficient for application of the enhancement. But

the district court, relying on trial testimony that demonstrated by a preponderance of the evidence

that 1.2 grams of heroin “would be enough for approximately 12 heroin customers,” found that

this was “more than a personal use amount.” Moreover, law enforcement officers found more than

-60- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

just heroin at Bibbs’s house—they located “several so-called tools of the trade, including a heroin

press, Narcan, plastic bags, and Similac, which can be used as a heroin cutting agent.” With this

evidence, the district court did not err in concluding Bibbs maintained his residence for the purpose

of manufacturing or distributing heroin. See United States v. Bell, 766 F.3d 634, 637 (6th Cir.

2014).9

Section 2D1.1(b)(1) of the Guidelines increases a defendant’s base-offense level for a drug-

related conviction by two “[i]f a dangerous weapon (including a firearm) was possessed.” To

apply this enhancement, the government must establish, by a preponderance of the evidence, that

(1) the defendant actually or constructively possessed the weapon and (2) the possession occurred

during the commission of the offense or relevant conduct. United States v. West, 962 F.3d 183,

187 (6th Cir. 2020). Upon that showing, the burden then shifts to the defendant to “demonstrat[e]

that ‘it is clearly improbable that the weapon was connected with the offense.’” Id. at 188 (quoting

U.S.S.G. § 2D1.1 cmt. n.11(A)). Over Bibbs’s objection, the district court found a preponderance

of the evidence supported application of this enhancement based on law enforcement officials’

discovery of a firearm at Bibbs’s house, trial testimony that linked Bibbs to carrying a gun to

9 Bibbs additionally argues the district court erroneously relied on acquitted conduct when it applied this enhancement, given that the jury found him not guilty of possessing heroin with the intent to distribute but instead convicted him of the lesser-included offense of simple possession. But acquitted conduct may be used in sentencing so long as the district court finds the relevant facts by a preponderance of the evidence. United States v. White, 551 F.3d 381, 386 (6th Cir. 2008) (en banc). And as set forth, the district court made such a finding. -61- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

protect his trafficking activities, and “several videos of [Bibbs] possessing a gun during daily

activities.”

On appeal, Bibbs says this determination was erroneous because the jury acquitted him of

the two gun charges he faced—two counts of possessing firearms in furtherance of drug trafficking

(counts two and 13). But a jury’s acquittal on a § 924(c) gun charge “does not prevent [a]

sentencing court from considering conduct underlying the charge of which [a defendant] was

acquitted, so long as that conduct has been proved by a preponderance of the evidence.” United

States v. Miggins, 302 F.3d 384, 391 (6th Cir. 2002). Bibbs does not advance any argument

concerning the district court’s preponderance-of-the-evidence finding regarding application of this

enhancement. And regardless, the district court expressly stated that it found the enhancement

applicable “not based on acquitted conduct.”

Section 3B1.2 of the Guidelines reduces a defendant’s base-offense level if the defendant

“was a minimal participant” (four levels) or a “minor participant” (two levels) “in any criminal

activity.” A minimal participant in a conspiracy is a defendant “who [is] plainly among the least

culpable of those involved in the conduct of a group. Under this provision, the defendant’s lack

of knowledge or understanding of the scope and structure of the enterprise and of the activities of

others is indicative of a role as [a] minimal participant.” U.S.S.G. § 3B1.2 cmt. n.4. A “minor

participant” is a defendant “who is less culpable than most other participants in the criminal

activity, but whose role could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. n.5. Because

these mitigating-role adjustments are “heavily dependent upon the facts of the particular case,” the

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Sentencing Commission has provided a list of five non-exhaustive factors for sentencing courts to

consider:

(i) the degree to which the defendant understood the scope and structure of the criminal activity; (ii) the degree to which the defendant participated in planning or organizing the criminal activity; (iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; (iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; [and] (v) the degree to which the defendant stood to benefit from the criminal activity.

U.S.S.G. § 3B1.2 cmt. n.3(C). The defendant bears the burden of proving a mitigating role in the

offense by a preponderance of the evidence. United States v. Guerrero, 76 F.4th 519, 533 (6th

Cir. 2023). We review a district court’s refusal to apply a mitigating-role reduction under § 3B1.2

for clear error. See Randolph, 794 F.3d at 616.

The district court concluded that Bibbs was neither a “minor” nor a “minimal” participant

in the heroin-distribution conspiracy. It reasoned (1) that Bibbs “understood the scope and

structure of the heroin distribution portion of the conspiracy,” given the connection Bibbs made to

Alim Turner through Billips, (2) that Bibbs’s participation was “not substantially less than that of

the average participant” in light of his role being “similar to the roles [of] many other co-

defendants,” and (3) that Bibbs “stood to benefit from his participation in the heroin conspiracy by

obtaining profits from the resale of heroin.”

Bibbs contends on appeal that he should have received a two-level, minor-participant

reduction, generically asserting he “had no contact with or knew any of the members of the alleged

conspiracy except for Camaron Billips” and that they conducted only one heroin transaction for

seven grams. But this argument ignores the district court’s finding that Bibbs trafficked heroin

-63- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

with Billips in a manner “similar to” the other defendants, and, more importantly, that Bibbs helped

facilitate Billips’s purchase of heroin from Alim. No clear error occurred here (and for this reason,

the district court also did not commit error when it declined Bibbs’s request for a downward

variance on these same grounds).

For these reasons, Bibbs’s sentence is procedurally reasonable.

Finally, recall that the district court varied upward from Bibbs’s Guidelines range of 70 to

87 months and imposed a 120-month sentence. Bibbs contends this variance was erroneous in two

conclusory sentences: “Mr. Bibbs submits that the criminal history category of VI does not

underrepresent the seriousness of Mr. Bibbs’ criminal history or the likelihood that he will commit

other crimes. Mr. Bibbs respectfully submits that the upward departure from the guideline range

to 120 months is wholly disproportionate, grossly excessive, unreasonable, and is a cruel and

unusual sentence in violation of the 8th Amendment to the United States Constitution.”

An above-Guidelines sentence is neither presumptively reasonable nor presumptively

unreasonable. United States v. Robinson, 813 F.3d 251, 264 (6th Cir. 2016). We review such a

sentence for abuse of discretion, “whether . . . just outside, or significantly outside the Guidelines

range.” United States v. Cunningham, 669 F.3d 723, 728 (6th Cir. 2012) (citation omitted).

However, “a major departure should be supported by a more significant justification than a minor

one.” Gall, 552 U.S. at 50.

In varying upward, the district court expressed its concern with Bibbs’s significant criminal

history—it reflected escalating violent acts (convictions for aggravated robbery and reckless

endangerment), and he committed the crimes for which he was convicted while on supervised

-64- No. 22-5046/5107/5131/5681/6056, United States v. Turner, et al.

release. Bibbs also engaged in conduct that was not indicative of respecting authority, including

threatening witnesses and law enforcement. And the district court concluded that “the nature and

circumstances of [Bibbs’s] offense conduct, coupled with his criminal history and . . . [the] instant

crimes demonstrate[] a heightened need for the sentence imposed herein.” This reasoning

withstands abuse-of-discretion review.

For these reasons, we affirm the district court’s judgments regarding defendants Alim

Turner, Ronald Turner, Kedaris Gilmore, Ushery Stewart, and Demetrius Bibbs.

-65-