United States v. Shawn House

• Decision Date: 14 June 2017
• Docket Number: No. 16-1691.,16-1691.
• Citation: 872 F.3d 748
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Shawn HOUSE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

872 F.3d 748

UNITED STATES of America, Plaintiff-Appellee,

v.Shawn HOUSE, Defendant-Appellant.

No. 16-1691.

United States Court of Appeals, Sixth Circuit.

Decided and Filed June 14, 2017^*

ON BRIEF: Zenaida R. Lockard, FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Shane N. Cralle, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: COOK, KETHLEDGE, and DONALD, Circuit Judges.

OPINION

COOK, Circuit Judge.

Defendant Shawn House appeals his sentence for conspiring to sell oxycodone. We AFFIRM.

I. Background Facts

From 2011 to 2014, House ran a drug-trafficking operation that specialized in distributing oxycodone pills. The operation obtained the pills from a Michigan pain clinic's patients, and employed drug runners to transport the oxycodone to House's network of dealers in Ohio. Once the dealers completed their sales, they remitted the proceeds to the runners, who delivered the drug money to House and fetched the next batch of pills.

In October 2014, Drug Enforcement Administration ("DEA") agents began to penetrate House's organization. They discovered a runner who had relocated from Detroit, Michigan, to Wooster, Ohio, to oversee House's central-Ohio distribution network. From 2011 to 2014, the runner made five to six trips per month to Detroit, delivering drug proceeds and picking up 400 to 800 oxycodone pills each time.

After an encounter with DEA agents in early October 2014, the runner began working as a confidential informant ("CI"), assisting the agents as a go-between carrying out a series of controlled deliveries and pick-ups. The first took place on October 5th, when the former-runner-turned-CI gave House $1,500 in drug proceeds. During this delivery, the CI observed Larry Rouse, another one of House's runners, drop off $5,000 and receive 300 pills. The second happened on October 7th, when the CI picked up 167 pills from Roxann Matter, yet another drug runner.

On October 9th, the CI—at House's direction—handed over $1,950 in drug proceeds to Matter, who then passed the money to House at a separate meeting place. Upon stopping House's vehicle after the meeting, DEA agents found the passenger, Clara Tolon-Garcia, with the marked cash given by the CI to Matter. The agents also conducted a traffic stop of Matter's car and interrogated her. She admitted that from 2013 to 2014, she made trips to House's Detroit apartments at least twice per month to unload drug proceeds and collect 150 to 300 pills, which she would then deliver to House's drug dealers in Ohio.

In the last pair of controlled deliveries, House arranged for the CI to bring a total of $2,650 to Rouse on October 14th and 15th. DEA agents later arrested House.

A grand jury indicted House for conspiring to possess oxycodone with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1), based on his trafficking from 2011 to 2014. Although House pleaded guilty, he maintained during the plea colloquy that the conspiracy with Rouse to sell oxycodone spanned from November 2013 to September or October 2014, not the entire 2011-to-2014 time period alleged in the indictment.

At the sentencing hearing, House challenged the presentencing report's ("PSR") finding that he was "an organizer or leader of a criminal activity that involved five or more participants," U.S.S.G. § 3B1.1(a), arguing that the government had failed to demonstrate "that there w[ere] five or more people ... involved in th[e] conspiracy." The district court denied House's objection to the leadership enhancement, explaining that it accepted the government's argument that the following individuals counted as coconspirators: House, Rouse, the CI, Matter, and Tolon-Garcia.

House also contended that the PSR should have calculated the quantity of drugs attributable to him using the conspiracy duration he admitted to at his plea hearing (2013 to 2014) rather than the period alleged in the indictment (2011 to 2014). The court ultimately decreased the quantity of oxycodone attributed to House on other grounds, but did not shorten the conspiracy's length to the one-year period House requested.

The court sentenced House to 180 months' imprisonment—below the Guidelines range of 235 to 240 months. House timely appeals.

II. Leadership Enhancement

We review the district court's "legal conclusion that a person is an organizer or leader under [§] 3B1.1" deferentially, and its factual findings for clear error. United States v. Olive , 804 F.3d 747, 759 (6th Cir. 2015) (citing United States v. Washington , 715 F.3d 975, 982–83 (6th Cir. 2013) ). "Under the clear-error standard, we abide by the court's findings of fact unless the record leaves us with the definite and firm conviction that a mistake has been committed." United States v. Yancy , 725 F.3d 596, 598 (6th Cir. 2013) (alterations and internal quotation marks omitted) (quoting United States v. Gardner , 649 F.3d 437, 442 (6th Cir. 2011) ).

Section 3B1.1(a) of the Sentencing Guidelines adds four points to a defendant's offense level if he "was an organizer or leader of a criminal activity that involved five or more participants." The commentary to § 3B1.1 defines "participant" as any " ‘person who is criminally responsible for the commission of the offense’ with which the defendant has been charged." United States v. Carroll , 893 F.2d 1502, 1507 (6th Cir. 1990) (emphasis added) (citing § 3B1.1, cmt. 1).

House argues that the district court erred when it (1) failed to name at least five participants of the conspiracy, (2) counted the informant as a participant, (3) and made no ruling or factual findings with regard to his leadership-enhancement objection. We disagree.

The sentencing transcript refutes House's first claim that the district court didn't identify at least five conspiring participants. During the hearing, the government listed the five participants (House, Rouse, the CI, Matter, and Tolon-Garcia), highlighting that House and Rouse both pleaded guilty to the conspiracy and then elaborating on the roles of the three other individuals. The court stated that "based on the government's statements and the [PSR] ... [House] was an organizer of this activity that involved five or more participants." Although reciting the names would have established a clearer record, the court was under no obligation to do so since it expressly adopted the government's list of participants, and the record supports the court's findings. United States v. Thomas , 373 Fed.Appx. 538, 541 (6th Cir. 2010) ("[O]ur review would be assisted greatly by the district court's identifying the individuals it found were participants in [defendant]'s scheme. But since the court properly held that the numerosity requirement of § 3B1.1 was satisfied, we find no error." (citing United States v. Vandeberg , 201 F.3d 805, 809–11 (6th Cir. 2000) )).

Next, House contends that the CI cannot be counted as one of the five participants because an informant cannot be held "criminally responsible." But House presents only half the law here. Although an informant cannot be held criminally responsible for his investigative work on behalf of the government, see United States v. Penaloza , 648 Fed.Appx. 508, 514 n.3 (6th Cir. 2016) (citing Carroll , 893 F.2d at 1508–09 ), he can be held responsible for his involvement in the criminal activity before the informant started cooperating with the government, United States v. Nanez , No. 06-6039, 2007 WL 2386474, at *7 (6th Cir. Aug. 21, 2007) (citing United States v. Dyer , 910 F.2d 530, 533 (8th Cir. 1990) ). Because the CI was a drug runner in the years leading up to his government cooperation, the district court properly found that the CI qualified as a participant.

Last, in his reply brief, House argues that the district court failed under Federal Rule of Criminal Procedure 32(i)(3)(B) to rule on his objection to the number of participants. House has likely forfeited this argument because he did not raise it below and mentions it only in a footnote (without any citation to relevant legal authority) in his opening appellate brief. United States v. Layne , 192 F.3d 556, 566–67 (6th Cir. 1999) ("[I]ssues adverted to in a perfunctory manner ... are deemed waived.") (citation and internal quotation marks omitted). But even if House had properly objected, the sentencing transcript shows that the district court considered the competing arguments, agreed with the government, and decided that the evidence supported a finding of five participants. We therefore discern no error.

III. Conspiracy Duration

"We review a district court's drug-quantity finding for clear error." United States v. Porter , 560 Fed.Appx. 543, 545 (6th Cir. 2014) (citation omitted).

House argues that the district court's failure to address his objection to the PSR's alleged conspiracy duration led to an erroneous increase in the quantity of drugs attributed to him. But because he offers no contrary evidence to dispute the facts supporting the PSR's conclusion about the conspiracy's length, the district court did not err.

House contended during the sentencing hearing that the district court should have held him responsible solely for the drugs trafficked from November 2013 to October 2014, supporting this argument with his "belief" that he participated in the conspiracy for that time period. Although the district court did not rule on the objection explicitly, it clearly relied on the PSR's finding of a four-year period in calculating the drug quantity.

On appeal, House seeks to bolster his one-year-conspiracy claim with these two facts: (i) he pleaded to a conspiracy stretching from only 2013 to 2014, and (ii) Matter...