RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0129p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIE R. BENTON, JR.,

Defendant-Appellant.

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No. 19-3287

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 5:18-cr-00406-1—John R. Adams, District Judge.

Decided and Filed: April 30, 2020

Before: MOORE, McKEAGUE, and READLER, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Robert A. Dixon, Cleveland, Ohio, for Appellant. Bryson N. Gillard, UNITED 

STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

_________________

OPINION

_________________

CHAD A. READLER, Circuit Judge. Willie Benton was arrested after purchasing four 

kilograms of powder cocaine during a transaction in his home. Benton later pleaded guilty to 

conspiring to possess with the intent to distribute and conspiring to distribute cocaine, a plea he 

does not contest. But he does contest his sentence for that offense. Benton asserts that the 

district court improperly calculated his Federal Sentencing Guidelines range by adding as 

“relevant conduct” to his underlying offense three kilograms of crack cocaine found in a safe in 

>
No. 19-3287 United States v. Benton Page 2

his home. See U.S.S.G. § 1B1.3(a)(2). Benton likewise challenges the district court’s 

imposition of a 260-month sentence as procedurally and substantively unreasonable. Seeing no 

error in the proceedings below, we AFFIRM the judgment of the district court.

I. BACKGROUND

After a month of planning, Willie Benton and Armando Merida met at Benton’s Akronarea home to complete a drug transaction. Unfortunately for the two, they were not alone in that 

respect. The DEA had been surveilling their actions.

The transaction itself was brief. Upon parking in Benton’s driveway, Merida went inside 

Benton’s home carrying about four kilograms of powder cocaine. Moments later, Merida exited 

the home and drove away. Having observed the circumstances surrounding the transaction, DEA 

agents stopped and searched Merida’s car. At the same time, they executed a search warrant on 

Benton’s home. In Merida’s car, agents found $94,190. In Benton’s home, they found the justdelivered four kilograms of powder cocaine. They also found approximately three kilograms of 

crack cocaine in a safe in an upstairs bedroom, and a handgun lying nearby.

Benton was charged with conspiring to possess with the intent to distribute and 

conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), & 846 

(Count 1); and with possessing cocaine with the intent to distribute, in violation of 21 U.S.C. 

§§ 841(a)(1) & (b)(1)(A) (Count 2). By agreement with the government, Benton pleaded guilty

to Count 1 in exchange for the dismissal of Count 2.

The parties then turned their attention to sentencing. The Presentence Report (or “PSR”) 

calculated Benton’s total offense level as 33. Critical to that conclusion was the underlying drug 

quantity calculation. The PSR added to the four kilograms of powder cocaine delivered by 

Merida the three kilograms of crack cocaine found in Benton’s safe, which the PSR deemed to 

be “relevant conduct” under U.S.S.G. § 1B1.3(a)(2). The PSR next assessed Benton a criminal 

history category of VI in view of his 30 criminal convictions, which included prior offenses for 

cocaine possession and trafficking. Taking all of this together, the PSR calculated Benton’s 

Guidelines range as 235 to 293 months.
No. 19-3287 United States v. Benton Page 3

Benton raised a number of objections to that calculation. Relevant here are his objections 

that: (1) his possession of the three kilograms of crack cocaine found in the safe upstairs should 

not have been considered “relevant conduct” under U.S.S.G. § 1B1.3(a)(2); (2) the district court 

should have granted him a downward departure because his criminal history category 

overrepresented the seriousness of his past crimes; and (3) he should not have received a 

considerably higher sentence than his co-defendant, Merida, who received 84 months of 

incarceration. The government, for its part, agreed with the findings of the PSR.

At Benton’s sentencing hearing, the district court heard testimony from Keith Taggart, a 

forensic chemist employed by the Ohio Bureau of Criminal Identification. Taggart testified that 

all of the contraband seized by the police—both the four kilograms delivered by Merida and the 

three kilograms in the upstairs safe—contained detectable amounts of cocaine or cocaine base. 

The government also called Michael Gilbride, an Akron police officer detailed to the DEA’s 

Cleveland field office at the time of Benton’s arrest, who participated in the investigation of 

Benton. Gilbride testified that the crack cocaine recovered from the upstairs bedroom was 

highly adulterated. Nevertheless, Gilbride added that Benton was likely selling it, perhaps with 

little success, and that the three kilograms discovered in the safe were what remained from an 

earlier five-kilogram purchase made by Benton. For corroboration, Gilbride referenced a call to 

Benton surveilled by DEA wiretap. During the call, a woman in Cleveland complained to 

Benton about the poor quality of the cocaine Benton had sold her. Gilbride also confirmed that a 

firearm was recovered next to the safe in the upstairs bedroom.

At the close of testimony, the district court turned to Benton’s objections to the PSR. 

Chief among them was Benton’s objection to the computation of the drug quantity. Benton 

argued that the crack cocaine stored in the upstairs safe was “unsellable” “junk,” meaning that he 

could not have possessed the crack cocaine with intent to distribute it. The government 

countered with evidence it had obtained through a wiretap which demonstrated that Benton had 

successfully sold roughly two kilograms of the so-called “junk” crack cocaine in the past. The 

district court sided with the government, finding that the crack cocaine was “[c]learly part of the 

course of conduct of the defendant.” In so doing, the court observed that a “drug trafficker 

[who] does a poor job of cooking his crack and/or mixing his drugs” is not shielded from having 
No. 19-3287 United States v. Benton Page 4

those drugs deemed “relevant for purposes of sentencing.” The district court also rejected 

Benton’s assertion that trafficking in one substance (here crack cocaine) is not relevant conduct 

in a prosecution for trafficking in another (powder cocaine).

Benton fared no better in his request for a downward departure based upon his criminal 

history assessment. Benton’s criminal history included past cocaine possession and trafficking 

convictions, weapons convictions, numerous community control and probation violations, and a 

bevy of convictions for operating a vehicle under the influence and driving with a 

suspended license. Benton argued that this admittedly lengthy criminal history was nonetheless

unworthy of category VI because seven of his twelve total criminal history points were 

assessed to misdemeanor—not felony—offenses. The government countered that category 

VI underrepresented Benton’s criminal history, noting that Benton had several times been 

assessed no criminal history points for felony offenses, including his prior cocaine possession, 

cocaine trafficking, and weapons convictions. Citing this “extraordinary record of misdemeanor 

offenses, let alone felony convictions,” the district court denied Benton a downward departure.

The district court also denied Benton’s request for a sentence similar to the 84-month 

prison term imposed on Merida. Critical to the district court’s conclusion were the stark 

differences between the two defendants, including Merida’s very limited criminal record. 

Adopting the PSR’s proposed Guidelines range of 235 to 293 months and following an analysis 

under 18 U.S.C. § 3553(a), the district court sentenced Benton to 260 months in prison.

On appeal, Benton argues that the sentence imposed by the district court is both 

procedurally and substantively unreasonable. We take up those arguments now.

II. ANALYSIS

A. Benton’s Sentence Was Procedurally Reasonable.

1. The Three Kilograms Of Crack Cocaine Were Properly Counted As Relevant 

Conduct.

The heart of Benton’s appeal is that his possession of three kilograms of crack cocaine

was not “relevant conduct” for purposes of the Guidelines. U.S.S.G. § 1B1.3(a)(2). In a
No. 19-3287 United States v. Benton Page 5

nutshell, relevant conduct is criminal conduct not necessarily covered by the present indictment

or plea that the Guidelines say may nevertheless be considered in computing the defendant’s

Guidelines offense level. United States v. Gill, 348 F.3d 147, 151 (6th Cir. 2003). In that it 

relates to the calculation of the proper Guidelines range, Benton’s “relevant conduct” argument

sounds in procedural reasonableness. To render a procedurally reasonable sentence, a district 

court must properly calculate that range, consider the § 3553(a) factors, rely on facts that are not 

clearly erroneous, and explain the sentence it ultimately selects. United States v. Bradley, 

897 F.3d 779, 784 (6th Cir. 2018) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). 

In reviewing sentencing proceedings, we examine the district court’s factual findings for clear 

error, its application of the Guidelines to those facts de novo, and its ultimate sentencing 

determination for abuse of discretion. United States v. Susany, 893 F.3d 364, 366–67 (6th Cir. 

2018).

A defendant’s uncharged trafficking offense for one controlled substance can constitute 

relevant conduct when the defendant is sentenced for trafficking in another. Gill, 348 F.3d at 

151 (“[T]ypes and quantities of drugs not specified in the count of conviction may be considered 

in determining the offense level. See [U.S.S.G.] § 1B1.3(a)(2) (Relevant Conduct).” (quoting 

U.S.S.G. § 2D1.1, application note 12 (application note 5 to the same section in the current 

Guidelines))). For Benton, then, his uncharged instance of possession with intent to distribute 

crack cocaine constitutes “relevant conduct” if it is “part of the same course of conduct or 

common scheme or plan” as Benton’s cocaine trafficking offense. U.S.S.G. §§ 1B1.3(a)(2)

& 3D1.2. In accordance with § 1B1.3(a)(2)’s plain language and its application notes, we have 

previously read that section as articulating two alternative grounds upon which an offense can 

qualify as “relevant conduct.” The first is where the offenses are “part of a common scheme or

plan,” which requires a finding that the offenses are “substantially connected to each other by at 

least one common factor, such as common victims, common accomplices, common purpose, or 

similar modus operandi.” United States v. Phillips, 516 F.3d 479, 483 (6th Cir. 2008) (quoting

U.S.S.G. § 1B1.3, application note 9(A)). The second is where the offenses are “part of the same 

course of conduct” because they are “sufficiently connected or related to each other as to warrant 

the conclusion that they are part of a single episode, spree, or ongoing series of offenses.” Id.

(quoting U.S.S.G. § 1B1.3, application note 9(B)).
No. 19-3287 United States v. Benton Page 6

Benton challenges neither this legal standard nor the fact that he possessed three 

kilograms of crack cocaine. He instead makes a more nuanced argument tailored to the facts. 

Benton claims that he could not have intended to distribute the crack cocaine because it was 

unsellable “junk.” For that reason, Benton says, his possession of the crack cocaine was not part 

of the same scheme or course of conduct as his possession of the more marketable powder 

cocaine. 

Benton’s framing of the issue, however, erroneously focuses on what might (or might 

not) have occurred as a result of his conduct, rather than his intent underlying that conduct. That 

is clear from the offense’s elements. “[T]he elements of possession with intent to distribute” 

include “(1) knowingly or intentionally, (2) possessing, (3) with the intent to distribute, (4) a 

controlled substance.” United States v. Buchanan, 933 F.3d 501, 510 (6th Cir. 2019) (emphasis 

added) (citation and internal quotation marks omitted). For the “intent to distribute” element, 

distribution is defined broadly to include, among other things, sales. United States v. Moore, 

423 F. App’x 495, 500 n.2 (6th Cir. 2011) (citing United States v. Jackson, 55 F.3d 1219, 1226 

(6th Cir. 1995)). With these concepts in mind, the question is thus not whether Benton could sell

the crack cocaine at the time it was seized, but whether he intended to sell (and thereby 

distribute) that crack cocaine. Whether a sale could actually come to fruition turns on a variety 

of factors, including price, quantity, quality, and opportunity. See Food Lion, LLC v. Dean 

Foods Co. (In re Se. Milk Antitr. Litig.), 739 F.3d 262, 279 (6th Cir. 2014) (discussing the effect 

of price, supply, and demand on market behaviors). But whether Benton intended to sell the 

crack cocaine turns only on Benton’s mental state. See United States v. Price, 134 F.3d 340, 351 

(6th Cir. 1998) (explaining that a conviction for possession with intent to distribute a controlled 

substance requires a showing of subjective intent to distribute narcotics). In other words, even if 

Benton could not sell the crack cocaine on the terms he had hoped due to its low quality, that 

does not preclude a finding that he intended to do so, and thus intended to distribute a controlled 

substance. United States v. Woods, 61 F.3d 904, 1995 WL 428334, at *3 (6th Cir. 1995) (table 

decision) (holding that the district court did not clearly err in finding the defendant intended to 

sell marijuana despite the defendant’s argument that the marijuana “wasn’t any good” and 

“would be almost impossible to sell”).
No. 19-3287 United States v. Benton Page 7

Whether Benton intended to sell the crack cocaine is a factual matter that we review only 

for clear error. United States v. Henry, 819 F.3d 856, 864 (6th Cir. 2016). And we see no such 

error in the district court’s finding that Benton did intend to do so, particularly in view of the 

preponderance-of-the-evidence standard applicable in sentencing proceedings. United States v. 

Shannon, 803 F.3d 778, 788 (6th Cir. 2015). Wiretap evidence admitted through witness 

testimony revealed that Benton had been trafficking cocaine in the months leading up to his 

arrest. Testimony also revealed that Benton had three kilograms of crack cocaine, an amount 

inconsistent with personal use. Benton kept that crack cocaine, which he alleged was unsellable, 

in a locked safe next to a firearm. Benton admitted at sentencing that he had been dealing in 

powder cocaine, and that the crack cocaine remained in his safe for “years” because the person 

who sold it to him “was supposed to fix” the crack—apparently so that Benton could later sell it. 

This collection of evidence hardly leaves us with a “definite and firm conviction” that the district 

court was wrong about Benton’s intentions. Id. at 787 (quoting United States v. White, 492 F.3d 

380, 414 (6th Cir. 2007)). 

Benton takes issue with some apparent confusion by the district court at sentencing as to 

whether the DEA wiretaps provided evidence that Benton was trafficking in powder or crack 

cocaine. True, at one point during the hearing, the district court appears to have incorrectly 

stated that a transaction captured on the wiretap involved the sale of crack, rather than powder, 

cocaine. Though the district court later corrected any misunderstanding, Benton claims that this 

sequence of events nevertheless infected the district court’s factual findings because the court 

corrected itself only after overruling Benton’s relevant conduct objection. But the district court, 

to its credit, took the issue head on. It noted its prior misunderstanding, and then, on the proper 

record, simply declined to change its mind that Benton intended to sell the three kilograms of 

crack cocaine because his prior transactions involved “cocaine of some form.”

With the benefit of the district court’s factual finding that Benton intended to sell the 

crack cocaine, Benton’s possession of that substance easily qualifies as relevant conduct as to his

powder cocaine conviction under either avenue set forth in U.S.S.G. § 1B1.3’s application notes. 

Start with the requirement that the offenses be “part of a common scheme or plan.” Here, the

two offenses were “substantially connected to each other by at least one common factor, such as 
No. 19-3287 United States v. Benton Page 8

common victims, common accomplices, common purpose, or similar modus operandi.” Phillips, 

516 F.3d at 483 (quoting U.S.S.G. § 1B1.3, application note 9(A)). While Benton may have

bought the crack and powder cocaine from different suppliers and sold the two drugs to a

different clientele, Benton’s purpose for committing the two offenses and his modus operandi in

doing so were identical. Benton sold drugs for a living. He bought, stored, and sold those drugs

while operating out of the same home. And he guarded the drugs with the same safe and gun. 

For the same reasons, Benton’s possession of the crack and powder cocaine are also “part of the

same course of conduct” because they are “sufficiently connected or related to each other as to 

warrant the conclusion that they are part of a single episode, spree, or ongoing series of 

offenses.” Id. (quoting U.S.S.G. § 1B1.3, application note 9(B)). Benton’s simultaneous 

possession and sale of crack and powder cocaine over several years is a paradigmatic example of 

ongoing criminal conduct. 

For purposes of the Guidelines, conduct is not unrelated, moreover, simply because it 

involves trafficking in a different substance, or because the purportedly related activity occurs at

different times. In Phillips, we found that the defendant’s three instances of possession of a 

firearm years apart were relevant conduct under § 1B1.3. Id. at 484. In so finding, we 

distinguished our prior holding in United States v. Hill that, “[g]enerally, where two isolated 

drug transactions are separated by more than one year, a ‘relevant conduct’ finding may not be 

premised on the sole similarity that both transactions involved the same type of drug.” 79 F.3d 

1477, 1484 (6th Cir. 1996). We did so by emphasizing the consistency and similarity between 

Phillips’s three offenses, as opposed to the lack of consistency and similarity in Hill’s two. 

Phillips, 516 F.3d at 484–85. In that sense, Benton’s conduct is more akin to that in Phillips—

Benton’s possession of crack and powder cocaine were simultaneous, not years apart, and 

Benton trafficked both substances out of the same home, for the same purpose, and with the 

same tools of the trade. To conclude otherwise would make it exceedingly difficult ever to 

consider a defendant’s uncharged trafficking in a controlled substance in computing his offense 

level for trafficking in another, a result that is plainly inconsistent with the Guidelines. See Gill, 

348 F.3d at 151. We thus see no error in the district court’s determination as to relevant conduct.
No. 19-3287 United States v. Benton Page 9

2. Benton’s Sentence Was Otherwise Procedurally Reasonable.

Benton also takes issue with the district court’s perceived overemphasis of the Guidelines 

range in setting his sentence. To Benton’s eye, his sentencing hearing “had the look and feel of a 

sentencing proceeding held before the landscape of sentencing was modified post-Booker,” 

which made the Guidelines range advisory. United States v. Booker, 543 U.S. 220 (2005). 

Benton principally faults the district court for overemphasizing his criminal history, which the 

PSR placed in the maximum category of VI. But the record belies his claim. The district court 

discussed in detail Benton’s crime, history, and characteristics as well as the need to deter 

Benton from future crime, the need to protect the public, and the possibility that a lengthy 

sentence might rehabilitate him. Those items were particularly relevant in answering Benton’s 

objection that Merida received a much lower sentence. In so doing, the district court emphasized 

the key differences between the two men, including their respective crimes and criminal 

histories. Further, before passing sentence, the district court referred to the Guidelines as 

advisory several times. And having done all that, the district court was “tempted to,” but 

ultimately did not, “impose a sentence outside of the [G]uidelines” range based on the 

information presented.

There was good reason for the district court repeatedly to discuss Benton’s criminal 

history in passing sentence. The court rightly noted that Benton’s record reflected a life-long 

disregard for the law, a pattern of conduct enabled by the repeated “slap[s] on the wrist” Benton 

received for serious conduct. And Benton failed to abide by even those minor punishments, 

repeatedly violating his probation and community control and driving on a suspended license 

after his numerous OVI convictions. At one point, the district court even fairly wondered 

whether Benton “[would] ever find his way to comply with even the basic laws of the state, laws 

of the country.” The district court’s discussion of Benton’s criminal history touched on each of 

the § 3553(a) factors. That Benton’s criminal history was his most prominent characteristic at 

sentencing is merely a reflection of his recidivist conduct. His sentence was procedurally 

reasonable. See United States v. Rayyan, 885 F.3d 436, 440 (6th Cir. 2018).
No. 19-3287 United States v. Benton Page 10

B. Benton’s Sentence Was Substantively Reasonable. 

Benton also argues that his 260-month sentence was substantively unreasonable. Unlike 

challenges predicated on procedural grounds, where our focus is on the manner in which a 

sentence was calculated, substantive challenges focus on the length of the sentence itself. United 

States v. Clayton, 937 F.3d 630, 642–44 (6th Cir. 2019). And thus unlike reviewing a 

mechanical calculation of the Guidelines range, we instead have before us more intangible 

considerations. For passing sentence is more art than science, and one that reasonable jurists 

undertake in diverse ways. Rayyan, 885 F.3d at 442. We accordingly afford significant 

deference to a district court’s balancing of the § 3553(a) factors—particularly where, as here, the 

sentence falls within the Guidelines range. United States v. Faulkner, 926 F.3d 266, 273 (6th 

Cir. 2019); United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).

No abuse of discretion occurred. As the evidence presented at sentencing reflected, 

Benton is a career criminal who regrettably broke the law as a matter of course. Whether it was 

possessing, abusing, or trafficking drugs, carrying weapons while on probation, driving under the 

influence, or domestic violence, crime was Benton’s lifestyle. Add to that Benton’s present 

offenses. Benton possessed with intent to distribute four kilograms of powder cocaine with an 

additional three kilograms of crack cocaine and a firearm upstairs, despite his well-established 

status as a felon. Those offenses, serious in their own right, were nonetheless just part of an 

ongoing criminal enterprise that filled Benton’s pockets while harming his community. And 

despite that history of misconduct, in many respects, Benton, as the prosecutor described things, 

had never received more than “a slap on the wrist.” We thus see no abuse of discretion in the 

260-month sentence imposed by the district court.

III. CONCLUSION

For these reasons, we AFFIRM the judgment of the district court.