NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0739n.06 Nos. 11-5154, 11-5145 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. KEMAL DUGAL I C, Def endant- Appellant, and DONTA HAMI L TON, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FR OM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF KE NTUCKY

BEF ORE: MOORE, ROGERS, and GRI FF I N, Circuit J udg es. ROGERS, Circuit J udg e. A jury convicted Kemal Dug alic of conspiring t o d i stribute

coca ine, conspiring to distribute marijuana , and conspiring to launder drug proce eds. The same jury also convicte d Dug alic’s c o-def endant, Donta

Hamilton, of conspiring to distribute cocaine

. Dug alic now appea ls his conviction and sentenc e and claims that (1) the district court err ed in admitting cer

tain testimony , (2) there was a fata l varia nce betwee n the indict ment and the

ev i d en ce introduced at trial, (3) there was insufficient evidenc e to convict him of conspiring to commit money launder ing, (4) there was insufficient evide n ce to convict him of conspiring to distribute more than 100 kilogr ams of marijuana , (5) the district court violated his Six th Amendment rig ht to a public trial, (6) the district court abused its discretion by ref using to conduct an in came ra revie w of potential Bradymateria l, and (7) his sente nce w as substantively unrea sonable.Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton Hamilton appea ls only his sentence an d ar gu es that the district court err ed by (1) not decr easing his offe nse level for acc eptanc e of responsibility , (2) not decr easing his offe nse level for being a minor or minimal participa nt in the criminal activity , and (3) enhanc ing his offe nse l ev el beca use he posse ssed a da

ng erous we apon. Eac h of these c laims lacks merit. I

. I n ear ly 2008, the Drug Enforc ement Administration (DEA) beg an investigating possible drug traff icking near L ondon, Kentucky

. Throug h its investigation, DEA ag ents met J immy J ones, who admitted that he reg ularly purcha sed sever al ounces of coca ine from Kemal Dug alic an d distributed it to others. J ones also t o l d the ag ents that, on one occa sion, he saw Dug alic in possession of one kilogr am of coca ine. J ones ag ree d to cooper ate with the DEA in its investigation.

The DEA had J ones make sever al controlled drug purcha ses from Dug alic while wea ring a h i d d en re cording device

. On one occa sion, Dug alic told J ones that his coca ine supplier was a Bosnian man with ties to a Mexi can drug car tel. Dug alic also told J ones that his sup p l i er m o ved approximately 200 kilogr ams of coca ine per month, transporte d the drug s by using multipl e vehicles with hidden compar

tments, and made thousands of dollars. I n an eff ort to further its investigation, the DEA conducte d extensive surveillance , interviewe d many cooper ating witnesses, and initiated numerous wiret ap s . T h e DEA also interce pted hundreds of rele vant phone calls, sever al of which involved discussi o n s o f criminal activity

. - 2 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton Ultimately , the DEA unc overe d a lar g e-sc ale inter national drug traff

icking org anization in which a source with direc t ties to a major Mexi can drug car tel reg ularly broug ht larg e quantities of

coca ine from Mexi co into the Un i t ed States and delivere d it to Emir Dada novic, a Bosnian man based in I ndianapolis. Dada

novic then dire cted his subordinate s, including D ug alic and othe rs, to deliver multipl e kilogr am quantities of coca ine to various reg ional distributors i n T en n essee , Kentucky , West Virg inia, Pennsy lvania, Ohio, and I llinois

. Dada novic had drivers, including Halil Ba tlak, assist with these deliverie s. The reg ional distributors, including Donta Hamilton, then distributed the coca ine at the local level. Ba sed on its investigation, the DEA believed that Dada novic’s org anization was responsible f or distributing hundre ds of kilogr ams of coc aine. The DEA also lear

ned that members of Dad anovic’ s org anization wer e involved in distributing marijuana

. During its investigat i o n , DEA ag ents rec orded sever al conver sations in which Dug alic and others discussed marijuana transac tions, including transac tions involving J erdin Yane s. The DEA also lear ned that Batlak repe atedly delivere d marijuana , including 500 pounds for Yane s, and that Dug alic himself rec eived marijuana from Yane s. Ba sed on its investigatio n , t h e DEA believed that Dada

novic’s org anization was responsible for delivering over 100 kilogr ams of marijuana

. Eventually , in October 2009, law enfor ceme nt officia ls arr ested sever al individuals involved in Dada novic’s org anization, including Dug alic and Hamilton. I n conjunction with these arr ests, the DEA seized six kilogr ams of coca i n e, d ru g para pherna lia, drug ledg ers, firea rms, and tens of thousands of dollars in ca sh.

- 3 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton I n Marc h 2010, a fede ral g rand jury indicted thirteen individuals, including Dug alic and Hamilton. The g rand jury char ged Dug alic with conspiring to distribute coca ine, conspiring to distribute marijuana , and conspiring to launder drug proce eds. The g rand jury char g ed Hamilton with conspiring to distribute coca ine. Whil e some of their co-de fenda nts took plea deals, Dug alic, Hamilton, and three others proc eede d to trial. At trial, the Gover

nment put on over 40 witnesses, introduced dozens of piece s of evidenc e, and play ed over two hundred taped phone calls. Among the Gov ernme nt’s many witnesses was DEA Ag ent J ere l Hug hes, who testified about the meaning of cer tain code words used by members of Dada novic’s org anization, and Batlak, who descr ibed his role as a driver in Dada novic’s
org anization. During the trial, the de fense asked the district court to conduct a n in camer a re view of notes from a police interview wi th Batlak to deter mine if reda cted portions of those notes contained Brady materia l. The district court, howeve r, declined the defe nse’s reque st, rely ing on the
prosec utor’s statement that he had revie wed the notes in question and provided the defe nse with all Brady materia l. After all of the evidenc e was prese nted, the district court rea d the jury instructions. The district c ourt then told the parties and the public that closing arg uments would beg in the following morning at “8:00 sharp” and that, afte r t h at time, the courtroom doors would be locked so as to preve nt distr ac t ions from “any one coming in and out.” The district court followed its stated
proce dure and the parties prese nt ed their closing arg uments without objecting to the lack of distractions. The c ase w as then submitted to the jury

.

- 4 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton The jury found Dug alic and Hamilton g uilty on all of the counts with wh i ch t h ey wer e char g ed. Dug alic then filed a motion for a judgme nt of acquittal or new trial, arg uing that there was insufficient evidenc e to support the jury ’s finding s that he conspired to distribute marijuana and conspired to launder drug proce eds. The district court, howeve r, denied Dug alic’s motion, holding that a re asonable jury

could have found that Dug alic committed these c rimes. Dug alic’s Presentenc e Report (PSR) rec ommended a total offe nse level of 43 and a criminal history cate g ory

of I based on zero c riminal history points, resulting in a r ecommende d g uidelines
rang e of life imprisonment. At Dug alic’s sentenc ing hear ing, howeve r, the district court found that Dug alic was not a manag er or supervisor in the money launder ing activity and, there fore , the proper gu i d el i n es rang e was 324 to 405 months’ imprisonment. The district court then considere d the § 3553(a) fac tors in or der to fashion a sentenc e that was “suff icient but not g rea

ter than nece ssary to comply with the purposes of

. . . Section 3553(a) .” The district court discussed, at leng th, the nature and cir cumstance s of the off enses; Dug alic’s hist ory and chara cter istics; the need for the se ntence i m p o s ed t o ref

lect the seriousness of the offe nses, to promote respe ct for the law, to provide j u s t punishment, to aff

ord adequate deter re n ce t o criminal conduct, to protec t the public from further crimes of Dug alic, and to provide Dug alic with neede d trea tment; and the need to avoid unwar rante d
sentenc e disparities. The district court then sentenc ed Dug alic to a total of 365 months’ imprisonment. Hamilton’s PSR rec ommended a total offe nse level of 34 and a criminal history cate g ory of I I based on three criminal history points, resulting in a rec ommended g uidelines rang e of 168 to 210 months’ imprisonment. Hamilton, how ever , asser ted three objections to his PSR

. First, Hamilton
- 5 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton arg ued that the probation office r should have re d u ce d h i s offe nse level by two levels beca use he clea rly demonstrated acc eptanc e of responsibility for his offe nse. Hamilton arg ued that he only went to trial to assert a le g al def ense—tha t he was not involved in the prec ise conspirac y alleg ed by the Gover nment—and that he never denied that he eng ag ed in criminal conduct. Second, Hamilton
arg ued that the probation office r should have reduc ed h i s offe nse level beca use he was mere ly a minor or minimal participa nt in the criminal ac t i v ity

. Third, Hamilton arg ued that the probation office r should not have applied a two-off ense- level enha

nceme nt for possessing a firea rm beca use his firea rms “had nothing to do with this offe nse wha tsoever.” At Hamilton’s sentenc ing hear ing, the district court beg an by overr u l i n g Hamilton’s objections to his PSR

. First, the district c ourt deter mined that Hamilton was not entitled to a twopoint offe nse level reduc tion for acc eptanc e of responsibilit y b ec au se he went to trial to make a fac tual challeng e to the Gover nment’s proof. Second, the district court found that Hamilton was not entitled to a mitigating role reduc tion beca use he was only held acc ountable for the quantity of drug s attributable to him and, in any event, was not substantially less culpable than his co-de fenda nts. Third, t he dis trict court found that Hami l t on’s offense level was properly enhanc ed because DEA
ag ents seized multipl e g uns from Hamilton’s residenc e and those g uns wer e located within five fee t

o f m ar ijuana. The district court then thoroug hly considere d the various § 3553(a) fac tors and
sentenc ed Ha

milton t o 168 months’ imprisonment. Both Dug alic and H amilton now appea l.

- 6 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton I I

. A. Dug alic’s Appe al On appea l, Dug alic arg ues that (1) the district court err ed in admitting cer tain testimony , (2) there was a fata l varia

nce betwee n the indictment and the evidenc e introduced at trial, (3) there was insufficient evidenc e to convict him of co n s piring to commit money launder ing, (4) there was insufficient evidenc e to convict h i m o f conspiring to distribute more than 100 kilogr ams of marijuana , (5) the district court violated his Six th Amendment rig ht to a public trial, (6) the district
court abused its discr etion by ref using to c onduct an in came ra revie w of potential Brady materia l, and (7) his sentence was substantively unrea sonable. All of Dug alic’s c laims lack merit. 1. Dug alic first arg ues that the district court err ed in allowing Ag ent Hug hes to testify about the meaning of cer

tain code words used by members of Da d an o v i c’ s org anization. On direc t 1 examination, Ag ent Hug hes testified about the DEA’s investigation, as well as his opinion that drug deale rs often use code words to disguise their dealing s. Then, on cross-e x amination, one of Dug alic’s co-def

endants repea tedly asked Ag ent Hu gh es wh at code words were used in this case , and Ag ent Hug hes responde d that members of Dug alic’s org anization ref err ed to money as “whe at,” marijuana as “g ree n,” and c ocaine as “ma terial.” The district court did not abuse its discretion in admitting Ag ent Hug hes’s answe rs. Ag ent Hug hes’s testimony helped the jury understand the meaning of the defe ndants’ coded conver sations,

Dug alic mistakenly challeng es Offic er Ry an Ba rtlett’s testimony , even though Offic er 1 Ba rtlett did not testify

about the mea

ning of any code w ords. - 7 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton and the district court gave an ap p ropriate cautionar y instruction so that the j ury could give proper weig ht to this testimony

. This court has repe atedly rec og nized that, in drug case s, office rs can testify as to the mea

ning of code w ords. See United States v. Fontao , 83 F.3d 423, 1996 WL 189306, *4 (6th Cir. 1996) (table) ; United States v. Garcia , 72 F.3d 130, 1995 WL 712757, *5 (6th Cir. 1995) (table)

. I n particula

r, we have held that a district cour t did not abuse its discretion by allowing an FB I ag ent to testify “as to the words or jarg on used in the interce pted conver sations.” United States

v. W eb b er , 2 5 9 F. App’x 796, 802 (6th Cir. 2008). Simi larly , the district court did not abuse its discretion in admitting Ag ent Hug hes’s testimony

. Dug ali c’s citation of United States v. Blakely , 375 F. App’x 565 (6th Cir. 2010), does not advanc e his arg ument. I t is true that, in Blakely , this court stated that it was “likely improper” when

a fede ral ag ent offe red his own interpre tation of a vag ue phone call that “did not include many words

or terms with which a juror would have been unfamiliar,” althoug h we ultimately held that any err or in this reg ard was harmless. Blakely , 375 F. App’x a t 570- 71. I n this case , Ag ent Hug hes was not simply offe ring his own interpre tation of a phone call; rathe r, he was testify ing about specific code words used in the dr

ug trade . Acc ording ly , Dug alic’s r eliance on Blakely is mispl ace d. Dug alic’s sug g estion that Ag ent Hug hes was not qualified to testify as an expert is likewise without merit. Ag ent Hug hes was a specia l ag ent with the DEA for over ten y ear s, had prior law enfor ceme nt experience as a Bor d er P at rol ag ent and with the Coast Guar d, participa ted in “hundre ds, if not thousands” of drug case s, including case s involving marijuana and cocaine, was familiar with the use of wireta ps, and had specia liz ed training i n s ev er al are as, including drug identification and the clande stine production of drug s. Clearly , Ag ent Hug hes wa s q u ali fied to - 8 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton t estify about the meaning of code words used in the drug trade

. And the fac t t h at m an y o f t h e defe ndants’ conver sations wer e initially in Bosnian or Serbian is immaterial beca use there i s n o dispute that tho s e conver sations wer e proper ly translated. I n short, Dug alic’s arg ument that the district court er

red in a dmitti ng Ag ent Hug hes’s testimony is unavailing

. 2. Dug alic next arg ues that there was a fata l varia nce betwee n the indictment and the evidenc e introduced at trial beca

use, althoug h the indictment alleg es that he and sever al other people wer e all involved in a single conspirac y to distribute coca ine, the proof at trial actua lly demonstrated multipl e conspirac ies. Howeve r, when viewed in the light most fa vorable to the Gover

nment, the evidenc e supported a f

inding of a sing le conspira cy

to distribute cocaine

. The Government’s proof reveale d a “chain conspiracy ” with Dada novic running t h e s how from I ndianapolis. Once Dada novic receive d co caine from Mex ico, he direc ted hi s subordinates, including Dug alic and others, to deliver the coca ine t o v ar i ous reg ional distributors in Tenne ssee, Kentucky , West Virg inia, Pennsy lvania, Ohio, and I llinois

. Dada novic’s drivers assisted with these deliverie s. The reg ional distributor s t h en d istributed the coca ine at the local level. Throug h this hiera rchy , Dada

novic’s org anization distributed hundreds of k i l o grams of coca ine and handled milli ons of dollars. Dug alic arg ues that this was not a single enter prise, but rathe r multipl e, smaller enter prises. To support his a

rg ument, Dug alic claims that “ther e was signific ant evidenc e” that his br other and co-de fenda

nt, Omer, “had a separ ate org anization” in Pitt sburg h, with his own purcha s er s an d d el i v er y men. Dug alic, howeve r, cites none of this “sig nificant evidenc e” and ignor es the
- 9 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton Gover nment’s evidence that he dis cussed possibl e cocaine transac tions with Om er. Moreove r, i n order to prove a single conspirac y , the Gover nment need n o t s h o w that eac h member of the conspirac y knows of, or is involved in all of, the activities that compris e t he conspirac y . United States v. W

arner , 690 F.2d 545, 549 (6th Cir. 1982). I nstead, all that is required i s t h at eac h conspirator “‘a g ree d to partic i p ate in what he knew to be a collective venture direc ted toward a common g oal.’” Id. (quoting United States v. Martino , 664 F.2d 860, 876 ( 2d Cir. 1981)). There was ample evidenc e that Dug alic ag ree d to participa te in what he knew to be a larg escale international drugtraff icking org anization led by Dada novic and directed towa

rd the g oal of maki n g mo n e y to c ontinue the tiered enter prise. Dug alic told the Gover nment’s cooper ating witness, J ones, that his coca ine s u p p l i er wa s a Bosnian man with ties to a Mexi can drug car tel, moved approximately 200 kilogr ams of coca ine per month, transporte d the drug s by using multipl e vehicles with hidden compar

tments, and made thousands of dollars. Dug alic then sold coca ine to J ones and
repe atedly met and spoke with Dada novic, Hamilton, Yane s, Batlak, and others about other coca ine
transac tions. Whil e Dug alic may not have known ever y member of Dada

novic’s org anization, and
may not have been awa

re of all of the orga n i z at ion’s activities, there was cer tainly sufficie nt evidenc e from which the jury could find a single conspirac y . I n other words, we cannot say that the

ev i d ence “ca

n rea sonably be construed only as supporting a finding of multipl e conspirac ies.” W arner , 690 F.2d a t 548 (emphasis adde d). Du gal i c ci t es United States v. Swafford , 512 F.3d 833 (6th Cir. 2008), but that case is distinguishable. I n Swafford , the Gover nment attempted to prove a “whe el conspirac y ,” with Swaffor d acting as the hub, connec ted to various customers by spokes. Swafford , 512 F.3d at 842.
- 10 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton The Gover

nment, howeve r, failed to p ro ve the exis tence of a common g oal or enter prise, and, there fore , we found a “rimless whee l conspirac y ,” with Swaffor d eng ag ing in multipl e conspirac ies with individual customers. Id

. That si tuation cre ated a fata l varia nce from the i ndictment, which char g ed a single conspirac y . Id

. at 842-44. Notably , howeve r, we stated in a footnote: “this is not

a ‘cha in c onspiracy ’ wher e the exis tence of a single conspirac y is pr oved by the fac t that operators
at differ ent levels are connec ted by a common scheme or enter prise.” Id. at 842 n. 3. Her e, the jury hear d clea

r evidenc e of a “cha in conspirac y ,” with Dada novic at the top, Dug alic and others below him, and the reg ional distributors fur t h er d o wn the chain. Acc ording ly , Dug alic’s relianc e on Swafford is misplaced and his arg ument that there wa s a variance betwee n the i ndictment and the evidenc e at tria l is without merit. 3. Dug alic next challeng es the sufficie ncy of the evidenc e supporting the jury ’s finding that he conspired to commit money launder ing. Count 4 of the indictment alleg ed that Dug alic and others conspired to commit money launder ing by transporti n g proce eds of unlawful drug activity from Kentucky t o Texas, Mexi co, and elsewhe re, knowing that the proper ty involved repr esente d the
proce eds of drug traff

icking , both w ith the intent to promote the car ry ing on of drug traff

icking , in violation of 18 U.S.C. § 1956(a) (1)( A)(i) , and to c oncea l and disguise the nature , location, source ,

owner ship, and control of the proce eds of this drug traff icking , in viola t i o n of 18 U.S.C. § 1956(a) (1)( B) (i). Viewe d in the light most favor able to the Gover nment, the evidenc e was sufficie nt to support that char g e.

- 11 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton As alre ady mentioned, the evidence at t ri al showed that larg e quantities of drug s wer e broug ht from Mexi co into the United States and delivere d to D adanovic

. Dada novic then direc ted his subordinates, including Dug alic and others, to deliver the drug s to various reg ional distributors in multipl e states, including Kentucky

. Once the reg ional d i s t ri b u t o rs sold the drug s, they sent money back to Dug alic and his colleagues, who in turn sent money back to Dada novic. I n order to fac ilitate this proce ss, Dug alic worke d persona lly to collect on debts from reg ional distributors, and Ba tlak delivere d money to Dug alic and then to Dada novic. Once Dada

novic was paid, he conce aled the money and sent it back to Mexi co in order to rec eive the next shipm en t of drug s. This is evidenc ed by the following fac ts: (1) just wee ks af t er a Ni s san truck was seen with Dada novic, police stopped the same truck in Texas and seized over $230,000 from a hidden compar tment inside; (2) Ba tlak testified th a

t Dada novic rec eived drug s from Mexi co; and (3) Dada novic himself admitted that he had a “partner ” in Mexi co. All of this evidence reve als a c y cle in which drug s went down the chain of Dada

novic’s org anization and drug m o n ey went back up the chain, in a conce aled fashion, in order to keep the illega l enter prise g oing. That is prec isely what the Gover nment alleg ed in the indictment. Neve rtheless, Dug alic claims that the Gover nment failed to prese nt any evide n ce t h at he
ag ree d to commit the crime of money launder ing or

that he knowing ly

joined the conspiracy

. But that is not true. The Gover nment put on proof that, afte r he distributed coca ine, Dug alic repe atedly

rec eived money from Batlak, worke d persona lly to collect on debts from reg ional distributors, and sent money

to Dadanovic , all befor e Dada novic sent this money back to Me x ico in anticipation of

more drug s. Take n in the light most favor able to the Gover nment, this ev i d en ce was more than
- 12 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton sufficie nt f

or the jury to f

ind an ag ree ment betwee n Dug alic and his c o-def endants to la

under drug
proce eds and that Dug alic knowing ly and voluntarily joined that ag ree ment. Acc ording ly , there was sufficie nt evidenc e for a rea sonable jury to find that Dug alic conspired to commit money launder ing. 4. Dug alic next challeng es the sufficie ncy of the evidenc e suppo rt i n g t he jury ’s finding on Count 3—that he conspired to distri b u t e 100 kilogr ams or more of marijuana , in violation of 21 U.S.C. § 846. Dug alic, howeve r, does not dispute, in a ny meaning ful way , the jury ’s finding s that he conspired to distribute marijuana o r t h at t he conspirac y involved at least 100 kilogr ams of marijuana

. R at h er , Dug alic only arg ues that it was not “re asonably fore seea ble to him” that the conspirac y

involved at least 100 kilog rams of ma rijuana, a s opposed to some lesser qua ntity

. Dug alic’s arg ument is without merit beca use the Gover

nment was not require d to show that he knew the exact quantity of marijuana i n v o l ved in order to obtain a conviction under § 846. United St ates v. Vil larce , 323 F.3d 435, 439 (6th Cir. 2003). The Government however was o nly require d to prove that Dug alic knew that “ some quantity ” of marijuana was invol ved. Id. at 4 3 8. The Gover

nment more than met its burden, introducing evidenc e that Dug alic and others discussed marijuana transac tions, including transac tions involving J erdin Yane s; Ba tlak repe atedly delivere d marijuana , including 500 pounds for Yane s; and Dug alic himself rec eived marijuana from Yane s. I n short, the Gover

nment prese nted suffic ient evidenc e to convict Dug alic on Count 3. 5. Dug alic was al s o n ot denied his Six th Amendment right t o a publi c trial. Dug alic’s claim that “the dist rict court denied the public acc ess t o the courtroom during the entirety of t he closing
- 13 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton arg uments” is inacc urate

. I n rea lity , the district court g ave the parties and the public advanc e notice that, once closing arg uments beg an, it would lock the courtroom doors in or der to pr event the jury from being distracted by “any one coming in and out. ” T h e d i s t ri ct court then followed this
proce dure. Thus, the public was not denied acc ess to the courtroom during closing arg uments; it was

mere ly preve nted from e ntering and leaving the courtroom while those ar g uments were g oing on. Not only did Dug alic not object to t h e lack of distractions, he now fails t o cite any leg al authority
sug g esting that the district court’s proce dure was improper. I ndeed, the case that Dug alic does cite, Presley v. Georgia , is clea rly distinguishable beca

use there the t ri al co u rt expressly excluded the public from attending the jury voir dire. 130 S.Ct

. 721, 722 (2010). Her e, si nce the district court allowed the public to attend the entire trial, including closing arg uments, it did not violate Dug alic’s Six th Amendment rig ht to a public trial. 6. The district court also did not abuse its discretion by ref using to conduct an in came ra revie w of potential Bradymateria l. We have re cog nized that a district c ourt is not require d to c onduct an in came ra revie w of such materia l wher e a prosec utor clea rly repr esents to the district court that all Brady materia l has been disclosed to the defen s e an d there is no evidenc e of misconduct by the
prosec utor. United States v. Carmichael , 232 F.3d 510, 516-17 (6th Cir. 2000 ); Un i t ed S t a tes v. Hernande z , 31 F.3d 354, 361 (6th Cir. 1994). Her e, althoug h one of Dug alic’s co-de fenda nts asked the distr i ct co u rt to conduct an in came ra revie w of notes from a police interview with Batlak to deter mine if reda cted portions of those notes contained Brady materia l, the prose cu t o r t o ld the district court that he had revie wed the notes in question and provided the defe nse with all B r a dy
- 14 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton materia l. Since there is no alleg ation or evidenc e of misconduct by the prosec utor, the district court did not abuse its discretion in declining the def ense’ s reque st. Whil e Dug alic conce des that the district court was n o t require d to conduct an in came ra

r e v ie w, he arg ues that this court should never theless reve rse his convictions beca use the district court mistakenly thought that it lacke d the authority to do so. When defe nse coun s el as k ed t h e district
court to look at the exhibi t for Brady materia l, the district court asked rhetoric ally , “Doe sn’t the U.S.
g et to make that call? ” Whil e somewhat unclea r, the court’s lang uag e can be taken as ref lecting the rule of Carmichael and Hernande z , and we do not rea d the court’s lang uag e as deeming itself barr ed from looking at the materia l in question. The district court asked the prosec utor if he had provided the defe nse with all Brady materia l and the prosec utor answe red that he had. The district court relied

on the prosec utor’s answe r and moved on. Since this was well within the district court’s discretion, Dug alic’s c laim that the district court committed reve rsible er ror is base less. 7. Dug alic’s sentenc e was also substantively rea sonable. This court aff ords Dug alic’s 365- month sentenc e a presumption of rea sonablene ss beca use it falls within the applicable gu i d el i n es rang e. See Rita v. United States , 551 U.S. 3 3 8 , 3 4 7 (2 0 0 7 ). Dug alic has failed to rebut this presumption. First, there i s n o merit to Dug alic’s sug g estion that the district court did not meaning fully consider that “the amounts [of coca ine] he direc tly was involved with are but a small perc entag e of the larg er pic ture.” The district cour t ag ree d with Dug alic “tha t at times he wa s seeking low level quantities of drug s,” but found that Dug alic “wa s also involved in much larg er quantities of drug s.”
- 15 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton The district c ourt corr ectly summarized the evidenc e, say ing “this was a far -re aching international conspirac y wher e money was g oing to Mexi co [and] signific ant quantities of drug s wer e coming in. The defe ndant Mr. Dug alic did bring people into the conspi racy , including the mother of his two children. He was a signific ant play er in this case .” Thus, despite Dug alic’s su gges t ion to the
contra ry , the district court thoroug hly and acc urate ly considere d the nature and circ umstances of his offe nses. Second, Dug alic’s arg

u m en t t h at the district court failed to consider his history and char acte ristics is also basele ss . Du gal i c emphasizes that he has no criminal history and has two small c hildren for whom he was the primary brea dwinner. The district c ourt expressly considere d
t h es e fa ct o rs, noting Dug alic’s “abse nce of a criminal history ” and the fac t that a long prison
sentenc e would leave Dug alic’s chil d ren “without a fathe r for a signific ant period of time.” Neve rtheless, afte r considering the extensive conspirac y in this case and balanc ing the rema ining § 3553(a) fac tors, the district court found that a sentenc e i n the middle of the g uidelines rang e was appropr iate. This was not a n abuse of

discretion. Finally , Dug alic’s claim that his case is akin to United States v. Delgadillo , 318 F. App’x 380 (6th Cir. 2009), i s unavailing

. I n Delgadillo , this court remanded a case for rese ntencing beca use the district court “just briefly mentioned § 3553(a) ” and did not addre ss the defe ndant’s history and char acte ristics at all. Delgadillo , 318 F. App’x at 386-87. Here, the district court thoroug hly consi d er ed all of the § 3553(a) fac tors, including sever al aspec ts of Dug alic’s history and char acte ristics, but found that, on balanc e, a sentenc e within the g uidelines rang e was appropr iate.

- 16 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton Acc ording ly , Delgadillo is cle ar ly distinguishable from this case and Dug alic’s arg ument that his
sentenc e wa s substantively unrea sonable is without merit.

B. H amilton’s Appeal On appea l, Hamilton arg ues that the district court err ed by (1) not decr easing his offe nse level for acce ptance of re sponsibili ty , (2) not decr easing his offe nse l evel for being a minor or m inimal participa nt in the criminal activity , and (3) enhanc ing his offe nse level b ec au s e he possessed a dang erous we apon. All of Ha milton’s claims lack merit.

1. The district court did not err in denying Hamilton’s reque st for a decr ease in his offe nse level pursuant to U .S.S.G. § 3E1.1(a) , which permits a two-leve l reduc tion when the def endant “cle arly demonstrates acc eptanc e of responsibility for his offe nse.” Be cause the district court “is in a unique position to evalua te a defe ndant’s acc eptanc e of responsibility ,” its deter mination “ is entitled to g rea t defe renc e on revie w.” U.S.S.G. § 3E1.1 cmt. n. 5. A defe ndant wishing to r ece ive a reduc tion f or

acc eptanc e of responsibility must prove fac ts e ntitli ng him to such a reduc tion by a preponde ranc e of the e vidence

. United States v. Bac on , 617 F.3d 452, 458 ( 6th Cir. 2010). T h e district court could proper ly deter mine that Hamilton did not satisfy his burd en . T h e Sentencing Commi ssion has noted that a § 3E1.1(a) “adjustment is not intended t o ap p l y to a defe ndan t who puts the g overnme nt to its burden of proof at trial by denying the essential fac tual elements of g uilt, is convicted, and only then admits g uilt and expresses remorse .” U.S.S.G. § 3E1.1
cmt. n. 2. Whil e Hamilton is corr ect that a “convic tion by trial

. . . does not automatically prec lude

a defe ndant from considera tion fo r such a reduc tion,” a defe ndant who is tried and convicted is

- 17 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton entitle d to cre dit for acc eptanc e of responsibility only in “ra re situations,” such as “whe re a defe ndant
go es to trial to asser

t and prese rve issues that do not rela te to fac tual g uilt ( e.g., to m ak e a constitutional challeng e to a statute or a challeng e to the applicability of a statute to his conduct) .” Id

. Her e, Hamilton arg ues that he admitted the essential fac tual elements of g uilt and only went to trial to asser

t the “leg al” defe nse of multipl e conspirac ies, claiming that while he may have conspired wi t h Dugalic and Batlak to distribute coca ine, he was not a member of the larg e Dada novic conspirac y . Although Hamilton arg ues that his multipl e conspirac ies defe nse “did not rest on issues rela ted to fac tual g uilt,” this court has repe atedly s a id that “‘[w]hether single or multipl e conspirac ies have be en shown is usually a question of f

act to be resolved by

the jury .’” United States v. Smith , 320 F.3d 647, 652 (6th Cir. 2003) (quoting United States v. Schultz , 855 F.2d 1217, 1222 (6th Cir. 1988)). I ndeed, in this case , the district court instructed the jury , in acc orda n ce wi t h the Six th Circuit’s pattern jury instructions 3.08 and 3.09 , t o consider a number of fac tors and deter mine whether a sing le or multipl e conspiracies ex isted. The jury ultimately found that the Gove rnment proved the single conspirac y alleg ed in the indictment. I n sum, while Hamilton char acte ri z es h is defe nse at trial as mere ly a leg al challeng e to the applicability of a statute to his conduct, the district
court corr ectly found that he disputed a fac tual element of g uilt and, there fore , was ineligible f or a § 3E1.1(a) adjustment. Despite Hamil t o n ’s cl aim to the contra ry , this case is unlike United States v. Gauvin , 173 F.3d 798, 806 (10th Cir. 1999) , in which the defe ndant “admitted to a ll the conduct with w hich he

was char g ed,” and “we nt to trial only to contest the leg al element of intent.” Her e, the Gover nment char g ed Hamilton with conspiring with Dada nov i c an d eleve n others to distribute coca ine, but
- 18 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton Hamilton denied that char g e and asser ted at trial that he was only involved with Dug alic and Ba tlak. Thus, unlike the defe ndant in Gauvin , Hamilton expressly challeng ed the fac ts surrounding his g uilt, making him ineligible for an acc eptanc e of responsibility adjustment. Moreove r, i n Gauvin the appellate court upheld

the district court’s g rant of a n acc eptanc e-of

-re sponsibili ty

adjustment. Hamilton errone ously

arg ues that the district c ourt failed “to make any specific finding s of fac t a s to w hether he acc epted responsibility for the crime for which he was convicted,” and that it “foc used only on whether [hi s] choice to proce ed to trial rende red him ineligible for an acc eptanc e of responsibility adjustment as a matter of law.” The district court was only require d to rule on the parties’ dispute over the applicatio n o f § 3 E 1

. 1 (a ). F E D . R. C R I M . P. 32(i)(3)

. The court did that, finding that Hamilt o n wa s i nelig ible for an acc eptanc e of responsibility adjustment beca use “[ h]e has disputed that he was a member of the Dada novic conspirac y .” Thus, Hamilton’s sug g estion that he wa s “punished for

defe nding himself” is not supported by the re cord. Finally , Hamilton sug g ests that he should have rec eived a § 3E1.1(a) adjustment beca use he
cooper ated with authorities during a sear ch of his home, truthfully told office rs that he had firea rms in his house, and expressed remorse and contrition for his actions at sentenc ing. Whil e this may be true, in light of Hamilton’s decision to g o to trial and asser t that he was not a member of the Dada novic conspirac y , the district court did not err in denying his reque st fo r an acc eptanc e of responsibility

adjustment. 2. The district court also did not err in denying Hamilton’s reque st for a mitigating role reduc tion pursuant to U .S.S.G. § 3B1.2, which authorizes a four- level reduc tion in offe nse level if
- 19 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton the defe ndant is deeme d a “minimal” participa nt in the criminal activity , a two-leve l reduc tion if he is deemed a

“minor” pa

rticipant, and a

three -leve l reduc tion if he falls somewhe re in be tween. I n reje cting the minor-par ticipant reduc tion, the district court cited seve ral c ases from this
court holding that a defe ndant is ine ligible for a mitigating role reduc tion if he is held ac countable only for the quantity of drug s attributable to him. See, e.g., United States v. Hutchins , 334 F. App’x 748, 750-51 (6th Cir. 2009); United States v. Bailey , 488 F.3d 363, 369-70 (6th Cir. 2007); United States v. Maynard , 94 F. App’x 287, 294 (6th Cir. 2004)

. We do not r ely on these holdings today , howeve r. They all rely , either direc tly or indirectly , on other case law interpre ting an old version of the S entenc ing Guidelines. S i n ce No v ember 1, 2001, the S entenc ing Comm ission has said that a defe ndant is not prec luded from being considere d for a mitigating role reduc tion simply beca use he is held acc ountable only for the quantity of drug s attributable to him. U.S.S.G. § 3B1.2 cmt. n. 3(A).

We need not resolve the extent to which these case s have continuing validity , howeve r, b ec ause the district court made sufficie ntly clea r that it would have found that Hamilton wa s n o t entitled to a mitigating role reduc t i o n i n an y event. I n response to Hamilton’s objection to being denied this reduc tion, the PS R stated that “it appea rs he play ed a c rucia l role in the org anization’s drug traff icking activities as one of sever al reg ional-leve l distributors. Whil e he held no position of authority or responsibility , he was not ‘substantially less culpable’ than his co-de fe ndants in
perpe tuating the conspirac y to traff ic in illega l drug s.” At the sentenc ing hear ing, when asked to

awa rd a r eduction for

being a minor par

ticipant, the cour

t responded,

- 20 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton

L et me ask y ou this. I f he—I would ag ree with y ou wholehea rtedly , if he was held responsible, which I ’m happy to do, for the 300 kilogr ams, and then g ive hi m a minor role, there ' s no question that' s what probation' s say ing here , is that h e's a reg ional level distributor, and he' s less culpable than Mr. Dada novic or the Dug alics. They say it appears he play ed a cruc ial role in the org anization’s drug

traff icking activities as one of sever al reg ional level distributors. Whil e he held no position of authority or responsibility , he was not substantially less culpable than his co-de fenda

nts in perpetuating the conspira cy . I f he was held responsible for the entire quantity as a member of the conspirac y , then vis-a-vis Dada novic and the Dug alics, there ’s no question he should g et a minor role. But if he’s only —and there ' s a lot of case law on this actua lly —if he’s only held responsible for his level of drug s, in other words, the reg ional level of drug s, which he was in char g e of, just—I ’m not say ing he deser ves an enhanc ement, then he would be—then there ’s no—it doesn' t seem to me there ’s a minor role. And there ’s all kinds of ca se law on this that I can c ite to y ou.

. . . All of these [cases] hold that a defe nd an t i s ineligible for a mitigating role reduc tion if he is held acc ountable only for the quantities of drug s attributable to him. I n some sense, I don’t know t hat I ag ree whole—I know t hey ’re published; I know they ’re binding, so I acc ept them. I don’t ag ree wholehea rtedly that they can never get it beca

use I think— this isn’t the situati on , but there could be a situation wher e even though they ’re held acc ountable for the drug s attributable to them, there is a situation wher e they have a minor role. I n other words, a low level play er who’s just dealing littl e chunks in a larg e conspirac y if—for example, Mr. Hamilton was held acc ountable, y ou could make an arg ument that it was rea sonably fore seea ble to him that all 300 kilogr ams. And then y ou could—I mean, I would say he was entitled to a minor role vis-a-vis the major conspirac y . But it doesn’t matter. That’s dictum; it has nothing to do with this case , so I won’t g et into that. But I do rec og nize those holdings. I rec og nize they ’re binding on me, and in any eve nt, I t h i n k it’s appropriate here whether they were binding on me or not , an d s o that objection’s overr uled. R. 657 at 13-16 (empha sis added)

. This excerpt s h o ws clea rly that the district court would have denied the minor participa nt reduc tion even if the cases i n questio n wer e not applied. Thus, even if Hamilton was elig ible for a mitigating role reduc tion, the district court still found that he was not

- 21 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton
a minor or minimal participa nt in the criminal ac t i vity

. Since this finding is supported by the evidenc e, including but not limit ed to the testimony of Batlak, the district court did not err in deny ing Hamilton’s reque st for a mitig ating role re duction. 3. The district court also did not err by enhanc ing Hamilton’s offe nse level pursuant to U.S.S.G. § 2D1.1(b)( 1), which states that “[ i ] f a d an gerous wea pon (including a firea

rm) was possessed, incre ase by 2 levels.” The Gover nment bore the initial burden of proving , by a preponde ranc e of the evidenc e, that Ha m i l t o n possessed a dang erous wea pon during the commission of the offe nse or other rele vant conduct. United States v. Kimbrough , 376 F. App’x 592, 596-97 (6th Cir. 2010). The burden then shifted to Hamilton to show that it was “cle arly improbable” that t he firea rm was

connec ted to the offe nse. Id. at 596. Whil e the Gover nment met its burden, Hamilton failed to meet his burden. The Gover

nment proved that Hamilton possessed multipl e firea rms. On October 15, 2009, DEA ag ents arr ested Hamilton, sear ched his residen ce , and seized three firea rms, including a Romarm/Cugir Model SAR-1 7.62 mm rifle (in a case with two loaded mag azines and 17 rounds of ammunition) and a Stag Arms Model Stag 15 5.56 mm rifle (in a c ase w ith two loaded mag azines and 40 rounds of ammunition), as well as numerou s b o x es of 7.62 mm ammunition and a loaded 100-round mag azine. Circumstantial evidenc e supports the conclusion t h at Ha m ilton possessed these wea pons during the time of the conspirac y char g ed—fr om J uly 2007 “throug h on or about October 13, 2009.” I t i s cer tainly logic al to conclude that Hamilton did not collect all of his wea pons in the two day s
- 22 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton betwee n October 13, 2009, when the conspirac y ended, an d Oc t o b er 15, 2009, when DEA ag ents

sear ched his resid en ce . M o reove r, the ty pe of g uns and amount of ammunition that Hamilton possessed strong ly sug g est that the wea pons wer e for use in the drug trade

. As the district court put it: this case “is far from the unloaded hunting rifle in the closet.” Thus, the district court did not err in finding tha t Hamilton possessed dang erous we apons during the commission of his offense

. L a s tl y , Hamilton did not show that it was “cle arly improbable” that the wea pons he possessed during the conspirac y wer e used in c onnection with the offe nse. I n deter mining whether a firea

rm

was rela ted to a particula

r drug offe nse for purposes of U.S.S.G. § 2D1.1(b)( 1), we consider sever al fac t ors, s uch as the prox imity of t he weapon to the drugs, the ty pe of firea

rm involved, whether it was loaded, and any

alternative purpose f

or the g un’s presence

. United St ates v. Moses , 289 F.3d 847, 850 (6th Cir. 2002) (citing United St ates v. Hill , 79 F.3d 1477, 1486 ( 6th Cir. 1996)). These fac tors do not help Hamilton. First, Hamilton’s fi re ar m s wer e found within five fee t of a small
amount of marijuana

. Although Hamilton was not char g ed with conspiring to distribute marijuana , the Gover nment did introduce evidenc e that Dada novic’s org anization distributed larg e amounts of marijuana and that, in May

2009, Batlak delivere d sever al pounds of marijuana to H amilton a t his residenc e. Second, H amilton does not dispute that the ty pe of g uns and ammunition he possessed

are commonly used in the drug trade

. Third, while it is unclea r if Hamilton’s firea

rms wer e loaded,

sever al o f h i s mag azines wer e loaded. Finally , Hamilton offe rs no alternative explanation for the
prese nce of these firear

ms in his residenc e. I n sum, none of the foreg oing fac tors helps Hamilton show that it is “cle arly improbable” that his g uns wer e rela ted to the conspirac y to distribute coca ine. Thus, the district court did not err in imposi ng the two-leve l § 2D1.1(b)( 1) enha nceme nt.
- 23 -Nos. 11-5154, 11-5145

United States v. Kemal Dugalic and D onta Hamilton I I I

. For the fore g oing rea sons, we aff ir m Dugalic’ s conviction and sentenc e and aff irm Hamilton’s sentenc e.

- 24 -