NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0405n.06 Nos. 10-5636, 10-5644 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. MICHAEL ROY REDMOND and CASEY M. REDMOND , Defendan ts-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL F ROM THE UNITED STATE S DISTRICT COURT F OR THE EASTE RN DISTRICT OF KENTUCK Y

BEFORE: GU Y, K

ETHL EDGE, and WHIT E, Circuit Judges. HELE NE N. WHITE , Ci rc u i t J u dge. Michae l and Casey Redmond wer e indicted on char g es ar ising fr om their participa tion in a me thamphetamine manuf actur ing ope ration. Michae l R edmond (“Micha el”) enter ed a conditional g uilty plea afte r the district court denied a m o t i o n t o suppress evidenc e seized from his vehicle. Casey Redmond (“Case y ”) pleade d g uilty to possession of methamphe tamine, and possession of a listed chemica l with the knowledg e it would be used to manufa cture methamphetamine. Mic hael a ppeals the de nial of the motion to suppress, and Ca sey appea ls his sentence. We AF F IRM as to both defe ndants. I. I n Dec ember 2007, Offic er Scott Whitaker of the L ake Cumberland Are a Drug Task For ce i n S o m erse t, Kentucky (“Ta sk For ce” ) went to the home of Michae l Redmond to investiga te aNos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond complaint that Michae l had attempted to steal lithium batterie s from a Wal-Mart. There , he
encounte red Casey , Michae l’s Son, who claimed to be Casey ’s b ro t h er Cornelius, and Ami Be ckman. Casey and Ami Be ckman admitted to knowing that Michae l produce d methamphetamine and admitted t o buy ing psuedoephe drine for Michae l with the knowledg e that he would use it to p ro duce methamphetamine. They also told Offic er Whit aker that various other family members, including Ca sey ’s mother Na nnette Redmond (“ Nanne tte”), bought products for Michael t o assist in manufa cturing methamphetamine. Whit aker al s o s melled a “strong chemica l odor around the residenc e,” and seized a small amount of methamphetamine and a small bag of marijuana

. Michae l was not pre sent during Whit aker ’s visit to t he Redmonds’ a ddress. Severa l months l at er , o n J uly 27 2008, David Gilbert, the Direc tor of the Task For ce,

rec eived a call from a L owe’ s store employ ee , who advised Gilbert that a white fema le had just purcha sed two canister s of “y ellow bottle ly e, drain clea ner.” Gilber t u n derstood the caller to be ref er ri ng to Roebic brand sodium hy droxi de 100 perc ent, which Gilbert testified he had only
encounte red in the L owe’ s store in question and in methamphetamine labs. Gilbert testified he had

one ca nister of drain clea

ner at home, which ha d lasted him ten y ear s, so he found the pur chase of
two canister s unusual. The caller g ave a detailed phy sical descr iption of the purcha ser and noted that she had “iodine-c oated fing ers,” which Gilbert found s ig n if icant beca use iodine is “norma lly utiliz ed in a red phosphorus lab for the m an u fa ct u re of methamphetamine.” The caller also provided a descr iption of the purch as er ’s pick-up truck as well as its license- plate number. Gilbert ran a reg istration chec k and discovere d it was reg istered to a Michae l Redmond living at 311 Br eezy Hills, Somerset, Kentucky

. Gilbert was awa re that the Task For ce and the DEA had been investiga ting a -2-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond Michae l Redmond “for se vera l y ear s now,” the Task For ce had two ag ents assig ned to complaints reg arding Michae l Redmond, and the DEA had provided repor ts to the Task For ce c oncer ning his involvement in drug traff icking

. Gilbert testified the Task For ce “c o n tinually g et[s] complaints about Mike Redmond and his manufa cturing methamphetamine a nd traff icking .” After rec eiving the tip from the L owe’ s employ ee, Gilber t contacted Offic er Whit aker reg arding the status of the Michae l Re dmond inve stiga tion. Whit aker told Gilbert that the woman in the pick-up truck was probably Nanne tte and confirme d the Redmonds’ addre ss. Whit aker then told Gilbert about the information he g ather ed during his Dec emb er 2 0 0 7 investiga tion of the Redmonds’ addre ss, and t hat Nannette had a drug -par apher nalia convic tion and had bee n arr ested in the past for possessing a conce al ed wea pon. Gilbert also knew that Michae l had prior drug convictions. After speaking with Whit aker , Gilbert drove toward the Redmonds’ addre ss a nd caug ht up with the pick-up truck just as it was enter ing the su b d i v i s i o n , following it as it pulled into the drivewa y of the Redmonds’ addre ss. Gilbert then g ot out of his vehicle, identified himself t o t he driver, and asked her for identification. Nanne tte provided her driver’ s license, wh i ch l i sted the Redmonds’ addre ss at which they wer e parke d, and Gilbert noted at that time tha t she matched the descr iption provided by

the L owe’ s employ ee. Gilbert told Nanne tte that he was a police office r and asked if she would consent to a sear ch of the truck, which Nanne tte ref used. Michae l then ca m e out of his g ara g e and also ref used to consent to a sear ch of the truck. Gilbert noticed that the Redmonds’ g ara g e was burned out with the entire roof missing, and contained g raf fiti showing a skull and the words, “Not re s p o n s i b l e for -3-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond

acc idents.” Gilbert called 911 and reque sted assistance , and two Pulaski County Sheriff’ s Deputies

arr ived within minutes. At Gilbert’s reque st, t h e d ep u t ies conducte d a safe ty swee p of the Redmonds’ residenc e and repor ted that no one was inside. Gilbert then asked th e d eputies to supervise Nanne tte and Michae l as he approa ched the truck and peer ed throug h the passeng er- side window. Upon looking inside, Gilbert saw an orang e posterboar d that obscure d part of a plastic bag , within which he could s ee ap p rox imately one inch of what rese mbled a y ellow spray paint can. Gilbert strong ly suspected it was Prestone starting fluid beca use he knew it to come in a y ellow can and had se en it in many

methamphetamine la

bs. Gilbert t hen opened t he door to the vehicle, lifted the pos ter b o ar d and found t hree cans of Prestone st ar t i n g fl u i d , ether , and a can of what he thought may have been iodine. Gilbert then place d Nanne tte under arr est, advised her of her rig hts , and asked her the location of the drain clea ner. Nanne tte responde d that the draine r clea ner was “in the tool box in the back,” and Gilbert found t wo canisters of drain clea ner in a tool box in t h e b ac k o f t he vehicle. When Gilbert asked Nanne tte what she was g oing to do with the chemica ls, she said she was just stopping by on her way to take the chemica ls to a frie nd. When he cha lleng ed this claim, she tol d him that she was g oing
to use the chemica ls to “cook.” Gilbert repor ted his observa tions to Whit aker upon his arr ival, and Whit aker prepa

red a sear ch war

rant aff idavit and obtained a sear ch war rant from a Pulaski County District Court judge

. The ex ecution of the s ear ch warra nt y ielded evidence of the m anufa cture of methamphetamine, including finished product methamphetamine, pseudoephe drine tablets, lithium batterie s, tinctured alc ohol, iodine, and salt.

-4-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond Michae l, Casey , Nanne tte, and A mi B e c k ma n w e r e a ll indicted for conspirac y to manufa cture methamphetamine. After a suppression hear ing, a mag istrate judge found that the s ea rc h o f the vehicle was not justified as a Terry sear ch or as a sear ch conducte d p ursuant to the safe ty -base d

war rant exception. Howeve r, the mag istrate judge found that probable cause supported the vehicle’ s

sear ch under the automobile exception to the war rant require ment, and beca use defe ndants did not arg ue that the war

rant application in i t s en t i re t y , including the evidenc e obtained from the truck, failed to provide probable cause to searc h the house, the mag istrate judg e upheld the se arc h of the Redmonds’ residenc e a s w e ll

. T h e d is tr ic t c o u r t adopted the rec ommended dispositi on in its entirety

. Michae l enter ed a conditional plea to Count 1 of t he superse ding indictment—conspirac y to manufa cture 50 g rams or more of a mix ture of substance conta i n i n g a detec table amount of methamphetamine, 21 U .S.C. § 846, and tim ely appea led the denia l of the motion to suppress. Casey ag ree d to plead g uilty to one count of being in possession of a listed chemica l wi t h knowledg e that it would be used to manufa cture a contr olled substance, 21 U .S.C. § 841, and one
count of simple possession of methamphetamine, 21 U.S.C. § 844, in exchang e for the dismiss al of other counts. The plea ag ree ment noted that Casey and the g overnme nt ha d rea ched the following ag ree ment reg arding

an ac cepta

nce- of-r esponsibility

adjustment: Pursuant to U. S

. S .G. § 3E1.1 and unless the Def endant commits another crime, obstructs justice, or violates a court order , decr ease the offe nse level by 2 levels for the Defenda

nt’s acc eptanc e of responsibility

. I f t he offense l ev el determined prior to this 2-leve l decr ease is level 16 or g rea ter, the Unit ed States will move at sentenc ing to decr ease the off en s e level by 1 additional level based on the Def endant’ s timely

notice of intent to plea d g uilty

. (Plea Ag ree ment, R. 200, at 3.)

-5-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond On May 17, 2010, Casey appea red for sentenc ing. Earlier that day , Ami Be ckman’ s attorney provided the g overnme nt with a letter that was p u rportedly written from Casey to Be ckman on Dec ember 2, 1999, afte r Casey had pleade d g uilty

. The letter appar ently indicated that Casey soug ht
to obtain drug s while in pre- trial detention, and provided detailed instructions to B eckma n on how
to smugg le the drug s to him. Casey ’s counsel was g iven the letter just prior t o sentenc ing. He objected to its considerati o n o n t h e basis that he had not had a chanc e to verify whether it was actua lly written by

Casey

. Over Casey ’s objection, and on the basis of the letter, the court remove d the t h re e-le vel reduc tion, thus bring ing Casey ’s rec alculate d total offense level to 28, and incre asing the advisory g uideline rang e from 70– 87 months to 97–121 months. Casey was sentenced to 100 months, and timely appea led. II. Motion to Supp ress A. Standard of

Review I n a challeng e to a district court’s ruling on a motion to sup p ress, this Court revie ws the district court’s fac tual finding s for clea r err or and its leg al conclusions de novo . United States v. Purcell , 526 F.3d 953, 959 (6th Cir. 2008). Whether a seizu re i s re as o n ab le under the Four th Amendment is a question of law that is revie wed de novo . United States v. Jones , 562 F.3d 768, 772 (6th Cir. 2009). I n revie wing a denial of a motion to suppress, we consider the evidenc e in the light
most favor able to the g overnme nt. United States v. Caruthers , 458 F.3d 459, 464 (6th Cir. 2006). This court may aff

irm a denial of a motion to s uppress on a ny g rounds, not just those relied on by the district court. United States v. Pasquarille , 20 F.3d 682, 685 ( 6th Cir. 1994). -6-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond B. Proba ble Cause Under the automobile exception to the war rant require ment, “an office r may sear ch a rea dily mobile vehicle without a war rant if h e h as probable cause to believe that the vehicle contains evidenc e of a crime.” Smith v. Thornburg , 136 F.3d 1070, 1074 (6th Cir. 1998). Probable cause is define d as “reasona

ble grounds for belief, supported b y less than prima facie proof but more than

mere suspicion.” Id. (citing United States v. Benne tt , 905 F.2d 931, 934 (6th Cir. 1990)). Probable

cause exis ts when there is a “fair probability that contra band or evidenc e of a crime will be found in a particular place.” Id. I n deter mining whether probable cause ex ists, we look to the obj ective fac ts known to the office rs at the time of the sear ch. Id

. at 1 0 7 5. Probable cause for arr est may

emana te from collective police knowledg e. See United States v. Perkins , 994 F.2d 1184, 1189 (6th Cir. 1993) (finding that probable cause exis ted as a matter of the coll ec t i v e knowledg e of all the office rs and a g ents investigating a case ). Michae l argue s t hat the collective knowledg e of the law enfor ceme nt office rs did not establish probable cause to conduct the war rantless sear ch of the vehicle beca use many of the fac ts supporting pr obable c ause w ere either stale or we re based on uncorr oborate d information from a n unreliable informant. The rele vant fac ts collectively known to police at the time of the war rantless

sear ch we re the following : (1) I n Dec ember 2007, afte r rec eiving a tip from a Wal -Mar t employ ee that Michae l Redmo n d h ad stolen lithium batterie s, Whit aker conducte d a sear ch of the Redmond home and discovere d small amounts of methamphetamine a nd marijuana

.

-7-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond (2) During that visit, W hitaker interviewed Ami Be ckman and Casey Redmond, who l ied
to Whit aker by claiming to be his brother Cornelius. Ami and Casey i m p l i ca t ed themselves, Nanne tte, and Micha el in a methamphe tamine manufa cturing opera tion. (3) Dur ing tha t visit , Whit aker smelled a strong

chemica l odor around the residenc e. (4) On J uly 27, 2008, the day of t he warra ntless sear ch, a L owe’ s employ ee pr ovided a tip that someone matching Nanne tte Redmond’s descr iption and driving the vehicle in ques t i o n purcha sed two ca

nisters of dra in cleane r, which G ilbert associa ted with meth production. (5) The descr ip tion included ref ere nce to the fema le’s “iodine fing ers,” which Gilbert associate d with meth production. (6) The vehicle was reg istered t o M i ch ael Redmond at the addre ss at which Gilbert
encounte red the vehicle. (7) The Task For ce had been i n v es t i gati ng Michae l Redmond for multipl e y ear s and had

rec eived multiple complaints. (8) Gilbert noticed the Redmonds’ g ara g e was burned out with the entire roof missing, and it contained g raf

fiti of a skull and the wor ds, “Not re sponsible for ac cidents.” (9) Throug h the window of the vehicle sear ched, Gilbert could see one-inc h of a y ellow can that he suspected was Prestone brand starting fluid, which Gilbert knew to come in a y ellow can and which he a ssociated with methamphe tamine produc tion.

1. Staleness Fa cts that at one time suppor ted probable cause can ove r time be come stale wher e they are not “so closely rela ted to the time of the [search] as to justify a finding of probable ca u s e at t h at -8-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond t i m e. ” Un i t ed States v. Hython , 443 F.3d 480, 485 (6th Cir. 2006). The dissipation of probable

cause is deter

mined by various fac tors including “the char acte r of the crime (cha nce encounte r in the night or reg ener ating conspirac y ? ), the criminal (nomadic or entrenched? ), the thing to be seized (per ishable and easily transfe rable or of enduring utilit y to its holder? ) the place to be sear ched (mere criminal forum of convenie nce or secur e opera tional base? ).” Id. (quoting United States v. Spikes , 158 F.3d 913, 923 (6th Cir. 1998)). “The passag e of time is less signific ant when the crime at issue is ongoing or continuous and the place to be searche d is a secure opera tional base for t he crime.” Id. (citations omitted). Fur thermore , “informa tion from an informant that is otherwise stale may be ref reshe d if the aff

idavit contains rec ent information that corr oborate s otherwise stale information.” Un ited States v. Thomas , 605 F.3d 300, 310 (6th Cir. 2010) (citation, altera tion, and int er n al quotation marks omitted). G e n e r a ll y , “ [i ]n the context of drug crimes, information g oes stale very quickly beca use dr u g s

ar e u s u al l y sold and consumed in a prompt fashion.” See United States v. Brooks , 594 F.3d 48 8 , 493, 494 n.4 (6th Cir. 2010) (citations omitted) (holding that information reg arding six -month old drug transac tions was stale for purposes of establishing probable cause ). Howeve r, drug crimes that

are long- term opera tions, like marijuana g rowing , “may allow for g rea ter lapses of time betwee n the i n formation relied upon and the reque st for a sear ch war rant.” Thomas , 605 F.3d at 310 (c i t i n g United States v. Gre any , 929 F.2d 523, 525 ( 9th Cir. 1991)). Her e, with respe ct to the char acte r of t h e cr ime, evidenc e of the manufa cture of methamphetamine is c loser to a r eg ener ating conspirac y than a c hance encounte r in the night. On the continuum of long- versus short-term criminal opera tions, the manufa cture of methamphetamine -9-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond lies somewher e between gr owing marijuana and selli ng or consuming d ru gs . The speed at which methamphetamine is manufa cture d depends on how quickly a varie ty of ingr edients are g ather ed and mix ed, but evidenc e of methamphetamine manufa cturing is rar ely as epheme ral as evidenc e of mere consumption of or transa ction in drug s. As to the nature of the criminal, all of the manufa cturing took place in the Redm o nds’ residenc e, and the ref

ore the alleg ed criminals wer e entr enche d rathe r than nomadic . Wit h respe ct to the third fac tor, althoug h the g oods to be seized wer e common househo l d items that are easily transfe rable , there is no in d i cation that the methamphetamine lab was mobile. There fore , the evidenc e may have been like l y t o b e t h ere for an indefinite period of time. See United States v. Hammon d, 351 F.3d 765, 772 (6th Cir

. 2003) (finding that evidenc e of marijuana plants from an indoor g row ope ration wa s “likely to be there for a

n indefinite per iod of time”). Finally , with respec t to the pl ace sear ched, although the war rantless searc h was c onducted

on a mobile vehicle rathe r than a secur e opera t i o n al b as e, the vehicle was reg istered to Michae l Redmond at the addre ss wher e it was parke d when it was sear ched. The vehicle was thus sear ched direc tly outside of the residenc e wher e the drug manufa cturing alleg edly occur red afte r t raveling there from a store wher e its d ri ver alleg edly made suspicious purcha ses. The prior evidenc e of a methamphetamin e manufa cturing opera tion supports probable cause for the sear ch of the vehicle

more so than if the vehicle was stoppe d i n an other location or had not trave led direc tly to the Redmonds’ reside nce.

-10-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond

2. Reliability

of De cembe r 2007 I nterview s Michae l also claims that the statements b y Casey and Ami Be ckman are unreliable and
cannot support a probable cause finding

. I n support of this contention, he arg ues that the statements

are simil ar to the tips from the informant in United States v. Perkins , 994 F.2d 1184 (6th Cir. 1993). I n Perkins , an individual voluntarily told law enfor ceme nt ag ents that the defe ndant had approa ched h er about participa

ting in criminal activity

. Then, with the ag ents’ knowledg e, she assisted t h e defe ndant in transporting and distributing marijuana , and along the way p ro v i d ed the ag ents with information needed t o h el p them obtain probable cause to conduct a sear ch. Id. at 1186–87. The defe ndant attacke d the informant’s reliabi l i ty , arg uing that the g overnme nt was require d under Spinelli v. United States , 393 U.S. 410 ( 1969), to demonstrate the informant’ s basis of knowledg e for the information as well as her cre dibilit y . Perkins , 994 F.2d at 1187–88. We reje cted Perkins’ arg ument on the basis that in Illinois v. Gates , 462 U.S. 213, 230 (1983), the Supreme Court repla ced the two-prong test in Spinelli with a more flexibl e standard, wher eby the two Spinelli prong s “should not be understood as entirely separ ate and independe nt r equire ments to be rig idly exacted in e very case,” but instead “should be understood simply as closely intertwined issues that may usef u l l y illumi nate the commonsense, prac tical question whether there is ‘proba ble cause ’ to believe that
contra band or evidenc e is located in a particula r place .” Perkins , 994 F.2d at 1188 (quoting Gates , 462 U.S. at 230). I n Perkins , this Court found there was “eve ry rea son” to be lieve the information provided by the informant was reliable , noting that the informant was known, that she had explained the basis of her information, that she voluntarily approa ched law enfor ceme nt with the information, and that law enfor ceme nt had independe ntly corr oborate d information she h ad provided. Id. -11-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond Contrary to what Michae l contends, we neither established nor applied a rule that, for infor mation from an informant to be sufficiently reliable , “1) there must be an ex p l an ati on for the basis of t he informant’s information; and 2) the information offe red by the informant must be independe ntly

corr oborate d by a police investiga tion.” (Michae l Redmond’s Br

. at 16–17.) Neve rtheless, the fac t that such basis and corr oboration exis ted in Perkins wer e rele vant fac tors that we considere d in deter mining ther e wa s probable c ause. Her e, Casey and Ami Be ckman have a clea r basis for their information. They wer e known individuals, rathe r than anony mous informants, who lived in the same house as Michae l and claimed
to have assisted him in procur ing ingr edients for the manufa cture of methamphetamine. Fur ther, the police knew Michae l had attempted to steal lithium batterie s from a Wal-Mart, smelled a s t ro n g chemica l odor around the residenc e, and seized finished methamphetamine from their home. There exis ted, there fore , some evidenc e corr obo ra t ing the information provided by Ami Be ckman and Casey . The re liability

of the infor

mation is discounted somewhat bec ause unlike the informant in Perkins , Casey and Ami Be ckman did not voluntarily come to t h e p o l i ce with information, and beca use Casey lied to the police and told them he was his brother Cornelius. But this indicates that Casey was attemptin g t o esca pe responsibility more than it sug g ests the information provided reg arding Michae l should be considere d altog ether unreliable

. 3. Analy sis The rele vance o f an y i n d ividual piece of information g ather ed in Dec ember 2007 to the probable cause deter

mination cannot be measure d in a vacuum, but rathe r must be viewed toge ther and in totality with the events immediately prec eding the sear ch. See Thomas , 605 F.3d at 308. -12-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond Rece nt events can serve to ref resh otherwise stale information, Tho ma s , 605 F.3d at 310, and

corr oborate information provided by an informa

nt. Perkins , 994 F.2d a t 1188. On the day of the war

rantless sear ch, in addition to the information he knew abo u t Ag ent Whit aker ’s pri o r i n v estig ation—during which Casey stated, among other things, that his mother Nanne tte had g ather ed meth i n gre dients for Michae l in the past—Gilbert lear ned that someone matching Nanne tte’s descr iption and driving Michae l’s vehicle had purcha sed, and then broug ht to the hous e, two canister s of R oebic drain clea ner, which Gilbert associated wit h meth production. He also knew that the Task For ce had investiga ted Michae l for multipl e y ear s and had rec eived multipl e complaints that he manufa cture d methamphetamine. Gilbert also saw what he strong ly suspected was Prestone brand starting fluid, which Gilbert also associate d with meth production, in the vehicle

. To the extent a question exis ts about the staleness of the information g ather ed in Dec ember 2007, and the reliability of the interview with Casey and Ami Be ckman, the fac ts g ather ed on the day of the war rantless s e a

r c h w e r e s ufficie nt to ref

resh the old information and corr oborate the interview. When the new information is viewed toge ther with the information g ather ed in Dec ember 2007, and when all of the evidenc e is viewed in the light most favo ra b l e t o t he g overnme nt, Gilbert had probable cause to believe the vehicle co n t ai n ed evidenc e of methamphetamine production. We ther ef o re conclude the war

rantless sear ch of the vehicle was lawful. Acc ording ly , we need not decide whether , in the absenc e of the information obtained from the sear ch of the vehicle, the sear ch

war rant a pplication provided proba ble ca use for the sea rch of Michae l Redmond’s residenc e.

-13-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond III. Continu ance Casey arg ues that his sentenc e must be vaca ted beca use the district court violated due proce ss by failing to g rant a continuance so his attorney could revie w the letter provided to him immediately prior to sentenc ing and which formed the basis for the decision not to g rant the two-leve l reduc tion for acc eptanc e-of

-re sponsibili ty that was rec ommended in the Presentenc e Report. The g overnme nt responds that Casey waived this objection by implicitl y ref using th e co u rt ’s offe r to continue the
sentenc ing he aring

. After defe nse counse l objected to the c onsideration of the letter, the c ourt responde d: Well, we could proce ed i n a couple of differ ent way s. One is we could continue the sentenc ing as it rela tes to Mr. Casey Redmond, and I woul d presume that we could, without too much difficulty , either authentica te the letter or not. I mean, it ’s ei t h er g oing to be a letter from him – I mean, it has pretty high level of cre dibilit y with me rig ht now, g iven that it comes from Ami Be ckman. Her counsel presumably rec eived it from her. She rec eived it from someone. You’re specula ting that may be someone was, in esse nce, tr y ing to se t up y our client. B ut I don’t think it would be too difficult to be able to show at least by a prepo n d er an ce o f the evidenc e that that is either in his handwr iting or consistent with what he would have sent. I f nothing el s e, the co-de fenda nt in this case could, I would assume, authentica te it in es s en ce i n t erms of the handwr iting in this case , so we could g o throug h that proce ss, I suppose. On the other hand, I don’t know that the g overnme nt’s g oing to do any thing other than simply , based on w hat they believe the letter to purport, to not move for the third level of acc eptanc e. That’s within their discretion to do i t

. At the appropr iate time, I could allow y ou to arg ue ag ainst that, kind of for the same rea sons. You, in e ssence , are arg uing that they oug ht not to do tha t, but that’s their decision to do it, absent the decision by the United States to move for the third level, I don’t have the discretion t o gi v e it. That’s within their discretion. And so it’s contemplated. I t was expected that it would be g iven, but I think it’s fair for them to consider this letter. I think it’s very fair for them to cons i d er t h i s letter and appropr iate for

them to do in terms of making that appropr iate motion. (Sentenc ing T ransc ript, R. 229, at 11–13.) -14-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond Def ense counsel answered, “Okay ” and did not request a c ontinuance at that time. On t he basis of the letter, the go v er n m en t d i d not move for the one-le vel reduc tion for assisting in the investiga tion or prosec ution of one’s own misconduct under U.S.S.G. § 3E1.1(b). The g overnme nt

a d d it io n a ll y r e q

u e s te d th a t Casey not rec eive the two-leve l reduc tion for acc eptanc e-of -re sponsi b il it

y under U.S.S.G. § 3E1.1(a) , arg uing that the letter demonstrated Casey had taken “it upon himself to eng ag e in additional cr iminal conduct, to keep be ing involved in na rcotics.” (

Id. at 17.) Def ense counsel responde d that even assuming the letter was valid, Casey deser ved the twolevel reduc tion for acc epting responsibility for the actions for which he was char g ed. The court sided with the g overnme nt, finding that the letter was not “the kind of conduct that sug g ests somebody has indicated remorse , has indicated acc eptanc e of responsibility for the drug crimes they ’ve been part

o f, an d t he continued use of those narc otics.” ( Id. at 22.) Casey now arg ues t hat t he cour t l ed t h e defe nse into believing the tw o - le v e l r e d u c ti o n f or acc eptanc e-of

-re sponsibili ty would be allowed and that only the third point for acc eptanc e might be lost, “thus misleading the defe nse from reque sting a continuanc e.” ( Casey

Redmond’s Br . at 11.) Whil e the district court did not specific ally ask whether Casey wanted a continuance , it was clea rly prese nted as a possibili ty and Casey was provided with an opportunity to respond. Def ense counsel appar ently ag ree d with the district court’s rec ommended course of conduct. And althoug h the district court seeme d to pull a bait-and- switch by imply ing initially that the letter would not aff ect Casey ’s two-leve l reduct i o n for acc eptanc e-of -re sponsibili ty , the court was noncommittal on that point, stating only that it did not know that the g overnme nt w ould do any thing bey ond not moving for the one-le vel reduc tion. Once it beca me clea r that the g overnme nt took the position that Casey -15-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond should not g et any cre dit for acc eptanc e-of -re sponsibili ty , defe nse counsel had an o p p o rt unity to respond and ag ain failed to ask for a continuance , instead using that opportunity to arg ue that despite the contents of the lett er , Casey should rec eive the reduc tion for acc epting responsibility for the crimes with which he was c harg ed. There fore , we find that Casey Redmond waived his object io n to b e in g s e n te n c e d as schedule d and the district cour

t did not err in re fusing to gr ant a c ontinuance of the sentenc ing. IV. Acc eptance of Responsib ility Casey arg ues the district court err ed in deny ing an acc eptanc e-of -re sponsibili ty adjustment. This Court revie ws the district court’s acc eptanc e-of -r es p o n s ibilit y deter

mination for clea

r err or. United St ates v. Brow n , 367 F.3d 5 4 9 , 5 5 6 (6 t h Cir. 2004). Due defer ence is g iven t o the di strict court’s application of the Sentencing Guidelines to the fac ts. United States v. W ebb , 335 F.3d 534, 537 (6th Cir. 2003). Section 3E1

. 1(a) of the Sentencing Guidelines states that, “I f the defe ndant clea rly demonstrates acc eptanc e of responsibility for h i s o ff en se, decr ease the offe nse level by 2 levels.” U.S.S.G. § 3E1.1(a). To qua lify for the reduc tion, a defe ndant must show “by a pre pondera

nce of the evidence that [he or she] had acce pted responsibil ity for the crime commit ted.” United St ates

v. Thomas , 74 F.3d 701, 716 (6th Cir. 1996). “An acc eptanc e of responsi b i l i t y adjustment is g ener ally awa

rded to a defe ndant who admits g uilt at a timely -ente red g uilt y p lea proce eding and may not be disallowed unless there is conduct clea rly demonstrated in the rec ord that is inconsistent with the defe ndant’s spec ific ac knowledg ment of re sponsibili ty demonstrated by the g uilty plea.” United States v. Truman , 304 F.3d 586, 592 ( 6th Cir. 2002). -16-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond Application Note 1 of the adjustment lists appropr iate considerations for the reduc tion, and includes, inter alia , “voluntary termination or withdra

wal fr om criminal conduct or associa tions.” U.S.S.G. § 3E1.1, App. Note 1. I n United States v. Morrison , we held that the phrase “voluntary termination or withdrawa l from criminal conduct” ref ers to conduct which is of the same ty pe or that is related to the unde rly ing of fense , and not illega l c onduct g ener ally

. 983 F.2d 730, 735 (6th Cir. 1993). Thus, wher e a defe ndant who pled g uilty to firea rm possession char g es was rele ased on bond and subsequently arr ested for attempting to steal a pickup truck, it was inappropria te for the district
court to consider the theft ag ainst him in deter mining whether an acc eptanc e-of -re spons i b i l ity adjustment applied. Id. I n descr ibing c riminal conduct that is “ rela ted to” the underly

ing offe nse,

we approving ly cited case s in other circ uits that denied the adjustment wher e, inter alia , a defe ndant whose underlying offe nse was a conspirac y to possess with intent to distribute coca ine subsequently used drug s while out on bond, see id. at 734 (citing United States v. Davis , 878 F.2d 1299, 1300-01 (11th Cir.)), and wher e the criminal conduct was evidenc e that the defe ndant “had not turned awa y from the life sty le that had motived his offe nse.” Id. at 734 (citing United States v. Sc roggins , 880 F.2d 1204, 1215 (11th Cir. 1989) (distr i ct co u rt did not err in finding continued use of coca ine demonstrated defe ndant had not turned awa y from lifesty le that motivated his postal theft offe nses). Her e, C asey ’s l etter sugg ests that he attempted to persua de a co-de fenda nt to assist him in smugg ling drug s into prison. This conduct is clea rly rela ted to Casey ’s underly ing offe nse beca

use both the underlying offe nse and the new conduct are methamphetamine- rela ted, and because the
at t empt ed smugg ling is evidenc e that Casey had not turned awa y from the lifesty le that h ad motivated his offense

. -17-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond Casey arg ues that the letter is evidenc e of his drug problem and d o es n o t i ndicate less

remorse for his involvem en t i n d ru g -traf ficking offe nses. Casey relies in part on an unpublished

case , United States v. Ack erman , 246 F. App’x 996 (6th Cir. 2007). I n Ack erman , this Court found that wher e a defe ndant pleade d g uilty to firea rms char g es, and misdemeanor drug possession char g es

wer e dropped as part of the plea ag ree ment, the district court co m m i t t ed er ro r by deny ing the

acc eptanc e-of

-re sponsibili ty adjustment o n t h e basis that defe ndant failed to acc ept responsibil ity for the marijuana possession and subsequently used marijuana while out on bond. Id. at 999. Ack erman is distinguishable, howeve r, beca use here both the underly

ing offe nse and the subsequent condu ct wer e drug -re lated. Casey cites no authority for the proposition that the commission of conduct rela ted to the underlying offe nse is not a basis to deny the ac ce ptance -of- responsibility adjustment wher e the new conduct i s evidenc e of drug addiction. On the contr ary , Casey ’s letter 1 sug g ests he has not turne d awa y from the life sty le that led to his orig inal drug offe nse. There fore , we find that the district court did not commit clea r error in ref

using to g rant a two-leve l reduc tion for a cce ptance -of- responsibility

. Casey further arg ues the g overnme nt was not at liberty to withhold a motion for a third point under U .S.S.G. § 3E1.1(b) bec ause the plea a g ree ment limit ed the g overnme nt’s discretion.

At oral arg ument, C as ey R ed mond direc ted this court’s attention to an unpublished case , 1 United States v. Hughes , 420 F. App’x 533 (6th Cir. 2011). But in Hughes , the underly ing sentenc e was for a firea

rms offe nse, and the post-plea conduct involved drug possession and drug traff icking

. Id. at 536. This Court found that the district court err ed in ref using to apply the three -leve l reduc tion beca use “H ug hes’ post-plea

conduct is ‘wholly distinct’ f rom his illeg al possession of a fire arm.” Id. (citing Morrison , 983 F.2d at 733). L ike Ack erman , Hughes is distinguishable beca use here , both the under ly ing of

fense and the subseque nt conduct ar e drug -re lated. -18-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond The re levant provision in the plea a g ree ment states: Pursuant to U.S.S.G. § 3E1.1 and unless the De fe n dant commits another crime, obstructs justice, or violates a court order , decr ease the offe nse level by 2 levels for the Defenda

nt’s acc eptanc e of responsibility

. I f t h e offe nse l evel determined prior to this 2-leve l decr ease is level 16 or g rea ter, the United States will move at sentenc ing to decr ease the offe nse by 1 additio n al level based on the Def endant’ s timely notice of intent to plea d g uilty

. (Plea Ag ree ment, R. 200, at ¶ 5.) Casey ’s arg ument is u

n a v a il in g b e c a

u se the plea ag ree ment conditions the two-leve l decr ease

on the defe ndant not committing another crime. Although the second part of the para g raph does not expli citly include the same condition, under the Sentencing Guidelines the ad d i t i o n al one-le vel decr ease under U.S.S.G. § 3E1.1(b) is only g rante d if the defe ndant first qualifies for the two-leve l decr ease under U.S.S.G. § 3E1.1(a)

. There fore , the g overnme nt did not violate the plea ag ree ment by failing to move to decr ease the offe nse by an additional leve l. V. Sub stantive Re asonab leness Casey finally arg ues that his sentenc e was substantively unrea sonable. The rea sonablene ss of a sentenc e is deter

mined using the abuse- of-discr etion standard o f review. United States v. Carter , 510 F.3d 593, 600 (6th Cir. 2007). Sentence s within the applicable Guidelines rang e are aff orded a presumption of rea sonablene ss. United States v. Vowel l , 5 1 6 F. 3d 503, 509 (6th Cir. 2008). A sentenc e may be substantively unrea sonable i f t h e d i strict court “sele cts the sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider pertinent § 3553(a) fac tors

or g ives an unrea sonable amount of weig ht to any pertinent fac tor.” Id. at 510. An asser tion that the

-19-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond district c ourt should ha

ve balanc ed the 3553(a ) fac tors differ ently is be y ond the scope of appellate revie w. United States v. Se xton , 512 F.3d 326, 332 ( 6th Cir. 2008). Casey arg ues his sentenc e was substantively unrea sonable beca use the court did not consider various fac tors, including his drug addiction, ag e, his family ’s influence over him, and the fac t that he admitted g uilt upon initial confr ontation by police and was truthful about t h e co n d u ct of coconspirator s. But Casey ’s history of substance abuse, age , an d t h e fac ts that his pare nts wer e methamphetamine addicts and co-de fenda nts wer e all included in the pre- sentenc e repor t, which the district court indicated that it had revie wed, acc epted, and adopted. Where such fac tors are included in a pre- sentenc e repor

t that the district court has read and considere d, the district court is not require d to addre ss eac h fac tor specific ally

. See United States v. W ittingen , 519 F.3d 633, 639 (6th Cir. 2008). I n any event, the d i s t ri ct co urt did extensively consider Casey ’s role in light of his pare nts’ influence over him, at one point ac k n o wl ed gi n g, “I t’s hard to say no to y our dad. I

rec og nize there is a dy

namic there that ref

lects the fa ct t h at t h i s was y our pare nts that y ou wer e enabling .” (Sentenc ing Transc ript, R. 229, at 64.) The court also discussed Casey ’s choice s in light of his addiction. The court went throu gh ea ch of the 3553(a) fac tors and sentenc ed Casey to 100 months, near the bottom of the 97–121 m o n t h rec ommended sentenc e under the Guidelines. Be cause Casey does not adequately rebut the presumption of rea sonablenes s t h at is g rante d to sentenc es that are within the applicable Guidelines rang e, we hold that Casey Redmond’s sentenc e was substantively

rea sonable.

-20-Nos. 10-5636 & 10-5644

United States v. Mic hael Redm ond and Casey Re dmond VI. For the foreg oing rea sons, we AF F IRM the order deny ing Michael Re d m o n d’s m otion to suppress and AF F IRM Casey Redmond’s sentenc e.

-21-