United States v. McReynolds

• Decision Date: 09 July 2020
• Docket Number: No. 18-1672,18-1672
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin Earl MCREYNOLDS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

964 F.3d 555

UNITED STATES of America, Plaintiff-Appellee,

v.Calvin Earl MCREYNOLDS, Jr., Defendant-Appellant.

No. 18-1672

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 9, 2020

OPINION

CLAY, Circuit Judge.

Defendant Calvin McReynolds appeals his conviction and sentence for conspiring to distribute and to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. For the reasons that follow, we affirm McReynolds’ conviction but vacate his sentence and remand for resentencing.

BACKGROUND

In April 2017, a grand jury indicted McReynolds and seventeen codefendants for various violations of the federal drug laws. McReynolds was charged only in Count 1 with conspiring to distribute and to possess with intent to distribute 500 grams or more of cocaine and 1,000 grams or more of heroin. The indictment provided that between June 5, 2015 and August 30, 2016, the defendants

knowingly conspired and agreed together and with other persons, both known and unknown to the grand jury, to possess with intent to distribute and to distribute controlled substances, in violation of Title 21, United States Code, Section 841(a)(1). The conspiracy as a whole involved 500 grams or more of a mixture or substance containing a detectable amount of cocaine, ... and 1000 grams or more of a mixture or substance containing a detectable amount of heroin, ... all of which is attributable to each defendant as a result of their own individual conduct, and the conduct of other conspirators reasonably foreseeable to each of them. ... All in violation of Title 21, United States Code, Section 846.

(Indictment, R. 183, Pg. ID 973–74.)

McReynolds was the only defendant to proceed to trial. At trial, he conceded that he does in fact sell drugs for individual consumption, but argued that he was not a member of the charged conspiracy. The prosecution presented various circumstantial evidence to link McReynolds to the conspiracy.

First, the prosecution introduced the testimony of Special Agent Mitchell King. King was part of the joint federal and state task force investigating the conspiracy.

King testified that the task force initiated approximately fifty controlled buys during its investigation, but that none of these buys were from McReynolds. The task force also obtained Title III wiretaps of the phones of identified drug sellers and the conspiracy's leader, Damarlin Beavers. The sixty-one-page application for the Title III wiretaps included the names of nine suspects in the conspiracy, but again not McReynolds. According to King, from the wiretap of Beavers’ phone, the task force found that McReynolds was making contact with Beavers "about every four days" to buy drugs. (Trial Tr., R. 570, Pg. ID 3878.) McReynolds frequently bought a split (i.e. , half an ounce) and sometimes one ounce from Beavers. Of the 2,297 pertinent calls intercepted on Beavers’ phone during the sixty days of the wiretap, only fifty-eight calls were between Beavers and McReynolds.

On August 30, 2016, the task force executed eight search warrants at locations on Grant Street, S. Warren Avenue, Joy Street, Mackinaw Road, Welland Drive, 13 Mile Road, and two other locations in Saginaw, Michigan. These locations included the stash house and home of Derek Duane Riley, the conspiracy's supplier, and the home of Beavers, the conspiracy's leader. Riley and Beavers acknowledged the amounts seized from these locations in their plea agreements. (See No. 1:16-cr-20677-TLL-PTM-2 (Riley), R. 105; No. 1:16-cr-20677-TLL-PTM-1 (Beavers), R. 449.) While mentioning each of the other codefendants, Riley's and Beavers’ plea agreements did not mention McReynolds.

None of the eight searches returned any evidence associated with McReynolds. His name was not included on any of the ledgers or logs obtained, his fingerprints were not on any of the seized evidence, and law enforcement did not include his name as a suspect on any of the lab reports associated with the searches. In addition, law enforcement chose not to search McReynolds’ home. Agent King testified that a pole camera at the Grant Street address showed McReynolds outside of that location on one occasion (the camera had been installed for months).

The prosecution next introduced testimony of cooperating witness and codefendant Brandon Pratt. Pratt testified that he had not been close to McReynolds since 2013 or 2014. He said that McReynolds "like[d] to do his own thing ... hang around different people." (Trial Tr., R. 571, Pg. ID 3994.) He said that McReynolds bought and sold drugs, and that Pratt had seen McReynolds at the Grant Street address once or twice but did not know if McReynolds stored drugs there. On cross examination, he admitted that he never saw McReynolds bring drugs or take any drugs from the Grant Street location. Pratt testified that McReynolds sometimes cooperated with codefendants to sell drugs and share resources, and was an active member of the conspiracy.

The prosecution's main witness was confidential informant, A.A., who self-identified at trial as a former buyer and a recovering heroin and crack cocaine addict. She said that she last used controlled substances 363 days before her testimony. A.A. testified to several occasions in which she had purchased heroin and crack cocaine from McReynolds. She testified that she usually purchased these drugs in small amounts (approximately 0.3 grams) for individual consumption.

A.A. testified that on one occasion she was directed to a house at Cleveland and Porter streets to buy heroin from McReynolds. While there, "Smurf," a codefendant, arrived with a bag of drugs that A.A. testified had about six bricks of heroin and six bricks of crack cocaine. A.A. said that, on another occasion, she saw McReynolds and Smurf bagging drugs for individual sales.

A.A. had nine convictions for shoplifting and a felony theft of a credit card. After serving time for her convictions, she contacted Detective Barry Gatza to become an informant and make controlled buys. Gatza was present in the courtroom while she was testifying in McReynolds’ trial and was mentioned in her testimony. During a recess, a juror asked the trial court if Gatza would be testifying, but the trial court informed him that Gatza would not testify. After trial resumed, A.A. testified that she had a probation violation hearing the day before giving her testimony. She said that Gatza had driven her to her probation violation hearing the day before and had gone into "a room" at the courthouse with the judge. She testified that Gatza had spoken to her state judge and she was now off probation. She denied that Gatza's help had affected her testimony. After additional testimony presenting circumstantial evidence of McReynolds’ link to the conspiracy, the parties rested.

The trial court instructed the jury to determine whether McReynolds was guilty of Count 1 and, if so, to determine "the quantity of the controlled substances involved in the conspiracy as a whole that are attributable to the defendant." (Jury Instr., R. 613, Pg. ID 4574.) Approximately three and a half hours after retiring to deliberate, the jury sent two notes: "Can we please get the reports showing the amount of controlled substances from all the house seizures" and "We would just like the grams of what's seized from the houses, the Michigan State Police report." (Jury Notes, R. 479 (sealed).) After substantial disagreement about the proper response, the court recalled the jury to hear additional testimony from Special Agent King.

Later, the jury submitted an additional question: "We need clarification on Mr. McReynolds’ responsibility for drugs he sold or all the drugs seized in the conspiracy?" (Jury Notes, R. 479 (sealed).) The court directed the jury to a page of the jury instructions titled "Determining Amount of Controlled Substances." Shortly thereafter, the jury returned a guilty verdict as to Count 1. It found the amount of controlled substances attributable to McReynolds beyond a reasonable doubt to be "less than 100 grams" of heroin and "less than 500 grams" of cocaine. (Jury Verdict, R. 478, Pg. ID 2532–33.)

Notwithstanding the jury's conclusions, the district court at sentencing attributed much higher drug amounts to McReynolds when calculating his base offense level. The presentence report ("PSR") attributed 767.66 grams of heroin, 711.56 grams of cocaine, and 263.51 grams of cocaine base to McReynolds in total. The PSR purported to derive these amounts from two sources. First, it held McReynolds accountable for "the amounts that were seized during searches and acknowledged in several codefendant[s’] Rule 11 Agreements." (PSR, CA6 Doc. 16-1, ¶ 38.) It next held McReynolds accountable "for the sale of heroin and cocaine base to AA." (Id. ) The PSR multiplied the amount that A.A. usually purchased from McReynolds (i.e. , 0.3 grams) by the total number of days of the conspiracy (i.e. , 452 days) to attribute to McReynolds an additional 135.6 grams of heroin and an additional 135.6 grams of cocaine base.

Thus, the PSR combined the amounts from the codefendants’ plea agreements with the individual sales to A.A. to arrive at the total quantity it attributed to McReynolds: over 750 grams of heroin, over 700 grams of cocaine, and over 250 grams of cocaine base. In doing so, the PSR increased the low end of McReynolds’ advisory guidelines range by approximately five years because the new drug amounts increased his base offense level from 24 (63 to 78 months) to 30 (121 to 151 months). After a two-level firearm enhancement, McReynolds’ final base offense level was 32, resulting in a guidelines range of 151 to 181 months of imprisonment.

Accordingly, McReynolds objected to the higher drug attribution amounts at sentencing. He argued that the district court should calculate his base offense level using the amounts indicated by the jury on its special verdict form: less than 100 grams of heroin and less than...