NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0280n.06
Case Nos. 15-2584/16-1064
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. KENNETH JEROME VALENTINE; JOHNNY VALENTINE, Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: MERRITT, GILMAN, a nd DONALD, Circuit Judges. BERNICE BOUIE DONAL D, Circuit Judge. Defendant Kenneth Valentine appeals the district court’s denial of his motion for sentence modification under 18 U.S.C. § 3582(c)(2), arguing that the district court erred in refusing to devalue the drug estimates relevant to his sentence. Defendant Johnny Valen tine likewise appeals the dist rict court’s denial of his § 3582(c)(2) motion on the ground that the district court improperly found that his involvement encompassed the entire conspiracy. Both cases have been consolidated on appeal. 1 For the reasons that follow, we AFFIRM the district court’s denial of Defendants’ motions for sentence modification.

1 Defendants share the same last name, so we will refe r to them by their first na mes for ease of reference.Case Nos. 15-2584/16-1064, United States v. Valentine

- 2 - I. We have previously, on more than one occasi on, had cause to review the facts underlying Defendants’ convictions, so we do not rehash them in great detail here. Defendants were charged as part of a twelve-person indictment in 1999. The indictment charged Defendants with conspiracy to distribute and posse ss with intent to distribute co caine base (crack cocaine), in violation of 21 U.S.C. §§ 846 and 841(a). In Fe bruary 2011, following a fourteen-day trial, Defendants were convicted. At trial, testimony from seve ral cooperating co-c onspirators and conf idential informants, including testimony from one Jerry Lee Butler and one Yusef Phillips, indicated that the conspiracy involved a total of fifty to seventy- five kilograms of crack cocaine. Kenneth’s Presentence Report (“PSR”) recomme nded a base offense level of 38, which, at the time, was the highest base offense level triggered by a drug quant ity of at least 1.5 kilograms of crack cocaine. The PSR concluded that Kenneth was responsible for over fifty kilograms of crack cocaine. Kenneth objected to this drug quantity at the se ntencing hearing, and the district court overruled his objection. Although expressing “misgivings ” about the actual amount of crack cocaine involved in the conspiracy, the district court fo und, by a preponderance of the evidence, that the conspiracy involved at least 1.5 k ilograms of crack cocaine, “and a great deal more.” (R. 417, PageID # 1517–18.) Likewise, Johnny’s PSR recommended a base o ffense level of 38, concluding that Johnny was responsible for over 1.5 kilograms of crack cocaine, and that his involvement in the conspiracy involved pooling his money with the other Valentines to purchase “kilogram quantities of crack cocaine from Arkansas.” (R. 1006, PageID # 4501.) The district court at sentencing again expressed its co ncern that the fifty-kilogram drug quantity was inflated, butCase Nos. 15-2584/16-1064, United States v. Valentine

- 3 - found that the conspiracy was res ponsible “for at least 1.5 kilograms of crack cocaine[] [a]nd that th[is] quantit[y was] reasonably foreseeable by [Johnny].” (R. 435, PageID # 1551–52.) Both Defendants were sentenced to a term of 292 months’ imprisonmen t. We affirmed on appeal, noting particularly that “[t]he amount of drugs involved in the conspiracy was conservatively estimated at between 50 and 75 kilograms of crack.” United States v. Valentine (Valentine I) , 70 F. App’x 314, 331 (6th Cir. 2003). Following the 2007 amendment to the crack cocaine guidelines (Amendment 706), Defendants filed motions to reduce their sentence under § 3582(c)(2). Th e amendment raised the minimum drug quantity required to impose a base offense level of 38 from 1.5 kilograms to 4.5 kilograms. The district court conducted sepa rate sentencing hearings for both Defendants, and again found that the conspiracy involved at least 4.5 kilograms of crack cocaine. Particularly, with respect to J ohnny, the court found that he shoul d be held responsible for the full amount of the conspiracy. On appeal, we a ffirmed the district court’s determination that Defendants were ineligible fo r a sentencing reduction. See United States v. Valentine (Valentine II) , 694 F.3d 665 (6th Cir. 2012). 2 In 2011, the Sentencing Commission agai n amended the crack cocaine guideline (Amendment 750) and raised the minimum drug qua ntity for a base offense level of 38 from 4.5 kilograms to 8.4 kilograms. Defendants again sought sentence m odifications, and their motions were denied following a hearing by the district court. Following the 2014 amendment to the crack cocaine guidelines (Amendment 782) that again raised the minimum drug quantity from 8.4 kilograms to 25.2 kilograms, Defendants filed the motions for se ntence reduction that

2 In this appeal, we also considered the eligibility of co-defendants Corey Valentine and Jimmy Ray Valentine for a sentence reduction.Case Nos. 15-2584/16-1064, United States v. Valentine

- 4 - are the basis of this appeal. 3 The district court denied De fendants’ motions to reduce their sentence, finding that the conspiracy involved a drug quantity greater than the required 25.2 kilograms, and that this amount was reas onably attributable to both Defendants.
II. A district court may modify or reduce th e sentence of a “defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In ge neral, we review a district court’s denial of a motion to modify a sentence under § 3582(c)(2) for abuse of discretion. United States v. Jackson , 751 F.3d 707, 710 (6th Cir. 2014). However, where the district court’s decision “rests on its determinatio n that the defendant is ineligible for a sentence reduction, we review de novo the district court’s eligibility determination,” and review any factual findings made for clear error. Valentine II , 694 F.3d at 669. “A fact ual finding is clearly erroneous when, on the entire evidence, we are ‘l eft with a definite and firm conviction that a mistake has been committed.’” Id . at 672 (quoting Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 573 (1985)).
A. District Court’s Drug Quantity Determination The main challenge to the district court’s drug-quantity finding in this appeal comes from Kenneth. In particular, Kenneth argues that the district court er red by giving no weight to the initial sentencing court’s misgivings about the dr ug quantity testified to at trial, and failed to devalue the amounts claimed by the Government. At Kenneth’s original sentencing hearing, the district judge, Judge Enslen, expressed his reservation at accepting the fifty to seventy-five k ilogram estimate, stating that he had “serious

3 Kenneth’s motion to reconsider the denial of his motion under Amendment 750 was consolidated with his motion under Amendment 782.Case Nos. 15-2584/16-1064, United States v. Valentine

- 5 - misgivings about the total amount of crack coca ine purchased by the conspiracy” and he believed “that some of the quantity figures [were] inflated in light of the fact that no significant amount of money or no significant quantity of drugs was ev er found on any of [the] Defendants.” (R. 417, PageID # 1517–18.) We acknowledge d this hesitation on Defendant s’ initial appeal, noting: “Although Judge Enslen questioned whether Butler and Phillips inflated the total quantity of drugs involved, it is clear from the transcript that his concerns were focused on how many tens of kilos were involved in this case.” Valentine II , 694 F.3d at 673. We went on to note that “this is a case where uncontradicted tria l testimony indicated that the conspiracy involved tens of kilograms of crack cocaine that were foreseeable to each Defendant as a member of the conspiracy.” Id

. We again visited the district court’s drug de termination in this case in the § 3582(c)(2) appeal of Jimmy Ray Valentine, a co -defendant at Defe ndants’ trial. See United States v. Valentine , 553 F. App’x 591 (6th Cir. 2014). In that case, we concluded, with respect to the testimony from Butler, that “[e]ven a conser vative sum of these estimates exceeds 30 kilograms.” Id . at 595. Further, with respect to Judge Enslen’s hesitations, we noted: “[A]dmittedly, Judge Enslen’s ‘misgivings’ might give us pause had the district court found Valentine responsible for 40 or 50 kilograms.” Id . at 596 (citing Valentine II , 694 F.3d at 673). The district court reache d its finding that this conspiracy involved crack cocaine in excess of 25.2 kilograms by referencing Bu tler’s testimony that “co-defendant Corey Valentine traveled to Arkansas approximately twenty times pick ing up 1.5 to 3 kilograms of crack.” (R. 1025, PageID # 4581.) Also, as we previously no ted, even a low-end estimation of this amount exceeds the required 25.2-kilogram threshold. See Valentine , 553 F. App’x at 595. Kenneth argues, however, that just choosing a “conservati ve estimate” is not enough, but that the courtCase Nos. 15-2584/16-1064, United States v. Valentine

- 6 - must err on the side of caution. See, e.g. , United States v. Walton , 908 F.2d 1289, 1302 (6th Cir. 1990) (“[W]hen choosing between a number of plausible estimates of drug quantity, none of which is more likely than not the correct quantity, a court must err on the si de of caution.”). As an example of erring on the side of caution, Ke nneth points to the calculations employed by the district court that we approved of in United States v. Whelan , 396 F. App’x 197 (6th Cir. 2010). In that case, the district cour t rejected the higher amount of drug proceeds admitted to by the defendant and the higher amount of pills alle ged to have been sold by the informant. Id . at 200. Instead, the court chose to calculate the indivi dual pill price based on the 1,000 pills defendant attempted to purchase for $33,940 on the day that he was arrested. Id . Reaching an estimate of $33 per pill, and adding the 1,000 pills defendant attempted to buy at the time of his arrest, the
district court determined that the total numbe r of pills was 7,060, based on the lower amount of drug proceeds testified to by the informant. Id . On these facts, we deci ded that the district court
in Whelan “actually erred on th e side of caution.” Id . at 201. Kenneth’s reliance on the facts of this case an d on our admonition to district courts to “err on the side of caution,” however, overextends the district court’s duty in a drug-quantity determination. District court judge s are not statisticians and should not be required to engage in protracted calculations. Rather, the district court is simply re quired to determine a drug quantity, based on the preponderance of the evidence, for which the defendant is actually responsible. Walton , 908 F.3d at 1302. “If the exact amount cannot be determined, an estimate will suffice.” Id

. Our decision here is largely determined by our prior decisions on this issue. The district court’s determination that the c onspiracy involved more than 25.2 kilograms of cr ack cocaine is supported by substantial and uncon tradicted evidence. That this estimate errs on the side ofCase Nos. 15-2584/16-1064, United States v. Valentine

- 7 - caution is bolstered by the fact that it accounts fo r but one of the sources of crack cocaine that trial testimony established supplied this conspir acy. Because a preponderance of the evidence supports the district court’s determination that this cons piracy involved more than 25.2 kilograms of crack cocaine, we find no clear error.
B. Scope of Conspiracy Determination We turn next to Defendants’ argument that the district court failed to make particularized findings as it related to the scope of the agre ement and the foreseeability of co-conspirators’ conduct. Kenneth argues that th e district court erre d in attributing ever y transaction involving his co-defendant, Corey Valentine, to him when Judge Enslen at the initial sentencing never made this finding. Johnny, on the other hand, argues th at the district court completely failed to make particularized findings re garding the scope of his agreemen t in the conspiracy and, instead, conflated this question with the question of reas onable foreseeability. We review the district court’s interpretation of guidelines de novo a nd its findings of fact for clear error. United States
v. Conatser , 514 F.3d 508, 523 (6th Cir. 2008). The guidelines provide that a defendant’s ba se offense level shall be calculated to include, “in the case of a jointly undertaken crim inal activity . . . , all acts and omissions of others that were within the sc ope of the jointly undertaken crim inal activity, in furtherance of that criminal activity, and reasonably foreseeable in connection with that criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). We have previously held that “this subs ection requires that the district court make particularized findings with respect to both the scope of the defendant’s agreement and the foreseeability of his co-conspirat ors’ conduct before holding the defendant accountable for the scope of the entire conspiracy.” United States v. Campbell , 279 F.3d 392, 400 (6th Cir. 2002).Case Nos. 15-2584/16-1064, United States v. Valentine

- 8 - Our holding in co-defendant Jimmy Valen tine’s § 3582(c)(2) appeal, which addressed a virtually identical issue, is equally applicable here: “the district court [] was not writing on a clean slate—Judge Enslen alread y made detailed findings concerni ng the scope of [Defendants’] consent and the foreseeability of [their] co-conspirators’ conduct.” Valentine , 553 F. App’x at 597. So, too, we do not begin with a clean slate in determining whether Defendants are properly held responsible for the entire amount of th e conspiracy. In Valentine II , we expressly concluded that “the conspiracy involved tens of kilograms of crack cocaine that were foreseeable to each Defendant as a member of the conspiracy.” 694 F.3d at 673. At Johnny’s original sentencing, Judge Enslen considered the facts that Johnny personally made three to five trips to Arkansas to purchase drugs directly from Butle r, contributed money to purchase drugs from Butler, was often present and “may even have ‘run’ a crack house,” and concluded that Johnny “played an important role in the conspiracy.” (R. 435, PageID # 1553–56, 1558.) The district court, at Johnny’s § 3582(c)(2) modification hearing, consider ed the conclusions of Judge Enslen and further noted its previous finding that Johnny was “waist deep in the c onspiracy.” (R. 1026, PageID # 4600.) Likewise, at Kenneth’s origin al sentencing, Judge Enslen first determined that the “jointly undertaken criminal activity was the purchase of both crack and powder cocaine from sources in Arkansans, California, and the resale of crack in Be nton Harbor.” (R. 417, PageID # 1517.) As to foreseeability, Judge Enslen stated that “trial testimony indicated that [Kenneth] was involved in multiple kilogram purchases of crack cocaine from Arkansas, and he personally negotiated the price, quantity and timing of these transactions. Furthermore, the evidence established [that Kenneth] was personally involved in the purchase of crack from Abdul Moore and that he was either personall y involved or at leas t knowledgeable of the purchase of crack andCase Nos. 15-2584/16-1064, United States v. Valentine

- 9 - powder from sources in California.” (R. 417, Page ID # 1517.) Judge Enslen also considered the fact that Kenneth contributed m oney to the purchase of crack cocaine from a ll three sources, and ultimately concluded that the amount of drugs i nvolved in the conspiracy was foreseeable to Kenneth. The district court, at Kenneth’s senten ce-modification heari ng, merely expounded on Judge Enslen’s finding, stating that “[t]he quantity attributed to Corey [Valentine] is properly attributable . . . to Kenneth Valentine. Co rey was the courier. Jimmy Ray Valentine and Kenneth Valentine arranged for the transactions .” (R. 1025, PageID # 4582.) More importantly, the district court noted that the amounts retrieved from Butler in Arkansas were reasonably foreseeable to each member of the conspiracy. Having already found that this amount exceeds the 25.2 kilogram threshold, it was proper for the dist rict court to deny the sentence modification. As such, we conclude that the earlier fi ndings concerning Defendants’ roles in the conspiracy foreclose the need for a dditional, particul arized findings. See Valentine , 553 F. App’x at 598.
III. For the aforementioned reasons, we AFFIRM the district court’s denial of Defendants’ motions for sentence reduction.Case Nos. 15-2584/16-1064, United States v. Valentine

- 10 - MERRITT, Circuit Judge, concurring in part and dissenting in part. I concur with the majority’s decision to affirm Kenneth Va lentine’s sentence, but I would vacate Johnny Valentine’s sentence and remand fo r further fact-finding regarding the scope of his agreement to participate in the underlying conspiracy because the record does not contain a sufficiently “particularized” finding of th e scope of his agreement. In the context of sentencing liability in c onspiracy cases, “the sc ope of conduct for which a defendant can be held accountable under the se ntencing guidelines is significantly narrower than the conduct embraced by the law of conspiracy.” United States v. Orlando , 281 F.3d 586, 600 (6th Cir. 2002). To hold a defendant accounta ble under the Sentencing Guidelines for a coconspirator’s independent acts, th is court requires the sentencing c ourt to make two separate and “particularized” findings: First, that the co-c onspirator’s acts were within the scope of the defendant’s agreement. Second, that those acts were foreseeable to the defendant. United States v. Campbell , 279 F.3d 392, 399-400 (6th Cir. 2002). Those findings should be accompanied by a statement on the record of the evidence and reasons supporting the district court’s conclusions. See Orlando , 281 F.3d at 601. The clear import of our pr ecedents is that defendants may not be sentenced on the basis of “the activities of the w hole operation” simply because “the defendant is aware of the scope of the overall operation.” Campbell , 279 F.3d at 400. Rather, the government must prove—and the court must speci fically find—that the defendant agreed to further the activities of the entire conspiracy. Id. The majority correctly holds that the sentencing court has made sufficiently particularized findings on the second prong of the analysis—that is, that it was foreseeable to all members of the conspiracy that the enterprise woul d result in the purchase and distribution of at least 25.2 kilograms of crack cocaine. See United States v. Valentine , 694 F.3d 665, 673 (6thCase Nos. 15-2584/16-1064, United States v. Valentine

- 11 - Cir. 2012); United States v. Valentine , 553 F. App’x 591, 595 (6th Cir. 2014). However, the district court’s opinions in this case have been less specific regarding its factual findings on the scope of Johnny’s agreement to part icipate in the conspiracy. The original sentencing court did not attempt to a make particularized finding about the scope of Johnny’s agreement because it sentenced Johnny before our decision in Campbell

. However, the original sentencing court did sp ecifically find that the record evidence was insufficient to support a supervisory role enhancem ent in light of Johnny’s relatively minor role in the conspiracy. While the sentencing judge stated that he was “confident that Defendant Johnny Valentine played an important role in th e conspiracy,” he pointed to several facts supporting his conclusion that Johnny was not a l eader of the conspiracy: Johnny did not negotiate or organize the terms of the drug buys that he consummated. He did not recruit others to participate in the conspiracy. He did not claim a larger shar e of the profits generated by the conspiracy. And, finally, he played no part in th e strategic planning of the conspiracy. At best, the sentencing court’s findings about the scope of Johnny’s agreement to participate in the conspiracy were mixed—far short of the requirement of particularity established by this court in Campbell

. And while the judges who have decided John ny’s successive petit ions for a reduced sentence under § 3582 had the benefit of our decision in Campbell , they too failed to make sufficiently “particularized” fi ndings about the scope of Johnny’s agreement. At various times the judges at those hearings desc ribed Johnny as “at least waist deep into this conspiracy, if not more,” “responsible for the full amount of the conspiracy,” “an integral member of the conspiracy,” and Jimmy Ray Valentine’s “right -hand man.” The judges also described or ratified descriptions of the conspiracy as “ver y tight-knit [and] family-based” and “in for a pennyCase Nos. 15-2584/16-1064, United States v. Valentine

- 12 - in for a pound.” However, these descriptio ns—and the evidence supporting them—were all bound up in the district court’s discussion of Campbell ’s “reasonable foreseeability” prong; they were not the type of discrete and particularized findings that are necessary to justify imposing Johnny with sentencing liability for the inde pendent acts of his co-conspirators. My opinion is motivated in large part by the unduly severe sentence imposed upon Johnny for his rank-and-file ro le in this conspiracy. This court’s decision in Campbell was the product of our concern with using the crime ofconspiracy as a “dragnet” to expose coconspirators to extreme and unfai r terms of imprisonment on the basi s of crimes that they did not themselves commit. Campbell , 279 F.3d at 400. This concern is especially salient in this case given the history of racially di sproportionate sentencing in crack cocaine cases like this one. Accordingly, I would vacate Johnny’s senten ce and remand to the district court for particularized fact-finding rega rding the scope of Johnny’s agr eement to participate in the conspiracy.