NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0014n.06 Nos. 11-1126, 11-1144 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. ALIST AIR RUF US MCG EE, (11-1126) DENNIS CHARLES PORTER, (11-1144) Defendan ts-Appellants. ) ) ) ) ) ) ) ) ) ) O N AP P EAL F ROM THE UNITED STATE S DISTRICT COURT F OR T H E E A S T E RN DI S T RI CT O F MICHIG AN

Before : BA TC HE LD ER , C hi e f J ud g e ; G I BBONS , Circuit Judge; and ROSENTH AL, District Judge .

* JULIA SMITH GIBBONS, Circuit Judge. This case arises out of a police sting operation which resulted in defe n d an t s-appe llants’ convictions for conspirac y to possess with intent to distribute five kilogr am s o r m ore of coca ine, in violation of 21 U.S.C. §§ 846 and 841(a) (1). Def endant- appellant Alistair Rufus McGe e wen t t o t ri al and was convicted by a jury

. He was sentenc ed to 204 months of imprisonment. Def endant- appellant Dennis Charles Porter pled g uilty and was sente nced to 210 months of imprisonment. Both a ppeal their

convictions and sentenc es. For the re asons set for

th below, we a ffirm.

The Honora

ble L ee H. Rosenthal, United States District J udg e for the Southern District of * Texas, sitt ing by

desig nation. -1-United States v. Mc Gee& Porter

Nos. 11-1126, 11-1144 I. The investigation in this case beg an in J anuar y 2010, when a confide ntial informant, “Nop,” told ATF Ag ent J o seph Nether about an arme d home-invasion cre w. Nop introduced Nether , working underc over and posing as a d ru g courie r for a larg e narc otics org anization, to Porter, a member of the g roup with whom Nop had previously committed these arme d robber ies. On J anuar y 19, 2010, Nether told Porter that he wanted the Mexi can car tel for which he worke d to b e “h i t” beca use it paid him too littl e for his courie r service s and ref used to compensate him proper ly for the dang erousne ss of his job. Nether mentioned that a ty pical shipment would include more than thirty kilogr ams of coca ine and that there wer e alway s at least two arme d people g uarding the drug house. When Nether asked if Porter would be interested in the job, Porter responde d, “Tha t’s what we do. That’s what we do. We do it all the time.” Nether explained to Porter that the car tel used a differ ent house for eac h delivery and that once he lear ned the location of the stash house, the cre w would have to rob it within a couple of hour s, befor e the c ocaine was sent out with cour iers. On J anuar

y 28, 2010, Nop telephoned Porter and arr ang ed fo r No p, Porter, and Nether to meet at a local restaur ant to discu s s the robber y plans. Nether told Porter that he anticipated the

arr ival of thirty to forty kilogr ams of coca ine around Fe bruar y 1. On Fe bruar

y 1, Nop called Porter to let him know that the robbery would occur the nex t day and to ar rang e a me eting of the c rewat the restaurant on the day of t he robbery

. Porter tol d Nop t hat he would bri n g McGe e and another individual, later re veale d to be Howa rd B arkle y , as par

t of the cr ew. When Nether arr ived at th e re s taura nt, Porter, McGe e, and Nop wer e alre ady there

. They revie wed the pl an s fo r the robber y . McGe e told Nether , “I ’m following lead baby , I ’m wit y a’ll,

-2-United States v. Mc Gee& Porter

Nos. 11-1126, 11-1144 whateve r y a’ll, I ’m rollin.” L ater , the last m em b er of the team, Ba rkley , arr ived at the meeting

. McGe e had rec ruited Ba

rkley to participate in the robber y as the driver. Porter then dismiss ed the

cre w with instructions to retrie ve the g uns that they would car ry for the robber

y and rec onvene at a local liquor store. Ba

rkley went with McGe e to McGe e’s house, wher e McGe e retrie ved an assault rifle. The cre w members rea ssembled at the liquor st o re and continued on to the storag e fac ility wher e Nether indicated the robber y would take place

. Nop, Nether , Porter, and Ba rkley all enter ed throug h the g ate, but McGe e did not follow. He claimed that the g ate h ad closed too quickly , so Nether g ave him the g ate code over the telephone. At that point, office rs announce d themselves and

arr ested Porter , Nop, and B arkle y . McGe e esc aped, but wa s later a rre sted. After the arr ests, office rs rec eived information that there wer e firea rms at Porter’s mother’s residenc e. Upon a sear ch of her home, office rs discovere d a Ruge r Mini-14 .223 caliber rifle, a 12- g aug e Moss berg shotgun, a 20-g aug e S pring field shot g un, and a .40 c aliber H MK handg un. Two of the firea

rms had rec ently been stolen from McGe e’s neig hbor in a home invasion that McGe e had

arr ang ed for

Porter and othe r cr ew membe rs to commit. McGe e pled not g uilty and went to trial on October 5-6, 2010. On the morning of trial, McGe e’s counsel moved to exclude testimon y re l ati ng to the unchar g ed home invasion robber y under F eder al Rule of Evidence 404(b), asser ting that it would be more pre judicial than probative if admitted. The district court denied McGe e’s motion, ag ree in g wi t h the g overnme nt that the unchar ged ro b b ery was within the char g ed conspirac y beca use a g un found in Ba

rkley ’s home following his arr est was stolen in the course of that robber y , and beca

use the two robber ies involved the same g roup acting toge ther o n t wo co n s ecutive day s. McGe e’s counsel did not move for -3-United States v. Mc Gee& Porter

Nos. 11-1126, 11-1144 acquittal at the close of the g overnme nt’s case or at the end of all of the evidenc e. At the conclusion of the trial, the jury convicted McGe e of conspirac y to possess with intent to di s t ri b u t e fi ve kilogr ams or more of coca ine, in violation of 21 U.S.C. §§ 846 and 841(a) (1). McGe e was sentenc ed to 204 months of imprisonm ent and f ive y ear s of supervise d rele ase. During an interview, ATF Ag ent J err od A. Marsh told Porter that ag ents had found g uns and drug s at Porter’s mother’s house and that Porter’s mother could be arr ested if Porter did not confe ss. Subsequent to that statement, Porter waived his Miranda rig hts and confe ssed. Porter moved to suppress his statement on the basis that it was involuntary , but the district court denied the motion. Porter later pled guilty

to conspirac y

to possess with intent to di stribute five kilog rams or more of

coca ine, in violation of 21 U.S.C. §§ 846 and 841(a) (1). The district court sentenc ed Porter to 210 months of imprisonment and five y ear s of supervised rele ase, applying the sentenc ing enhanc ements in U.S.S.G. § 2D1.1(b)(1) a nd U.S.S.G. § 2D1.1(c)( 3).

II. McGe e and Porter eac h challeng e their convictions and s en t en ce s o n appea l. We addre ss their ar g uments in turn, beg inning with those pre sented by McGe e. A. McGe e appea ls his conviction and sentenc e on the basis that (1) the district court improperly admitted testimony

that ref ere nced McGe e’s commission of an ea rlier, unc harg ed robbe ry ; (2) the g overnme nt prese nted insufficient evidenc e to sustain his conviction; (3) McGe e’s trial counsel was ineffe ctive for failing to timely object t o the prior robber y evidenc e and for failing to move for acquittal; and ( 4) the district’s c ourt’s sentenc e wa s substantively unrea sonable. -4-United States v. Mc Gee& Porter

Nos. 11-1126, 11-1144 1. M cG ee argues t hat t he dis trict court erre d in allowing the gover nment to prese nt evidenc e reg arding a prior, unchar g ed robber y of firea rms arr ang ed by McGe e and committed by Porter and other member s of their cre w. He claims that the district court err oneously failed to analy ze the unchar g ed ro b bery evidenc e pursuant to Rule 404(b) befor e admitting it. Rule 404(b) require s a d i strict court to evaluate whether there was sufficie nt evidenc e that the prior conduct occur red , whether the evidenc e of that act was probative of a materia l issue other than char acte r, and whether the probative value of the evidenc e was substantially outweig hed by its potential for prejudice

. See United States v. J

enkins , 345 F.3d 928, 937 ( 6th Cir. 2003). The district cour

t’s decision to admit evidence is reviewe d for a buse of discr etion. United States v. Davis , 514 F.3d 596, 611 (6th Cir. 2008). R u l e 4 0 4 ( b ) p r e c lu d e s t

h e a d m i s s i o n o f e x t ri n s i c evidenc e of prior bad acts to prove the defe ndant’s criminal propensity

. Howeve r, Rule 404(b) is not impli cate d when e vidence of prior a cts is “par t of a continuing pa

ttern of illeg al ac tivity ” or is “inextricably intertwined” with the indicted crime. United States v. Barnes , 49 F.3d 1144, 1149 (6th C ir. 1995). Her e, the admitted evidenc e was part and parc el of the charg ed conspiracy b ec au s e i t showed that the g overnme nt informant, Nop, knew Porter throug h their participation in prior arme d robber ies toge ther. I t is clea r that the way the defe ndants planned to commit the sting robber y was based on using the firea

rms they had stolen in the prior, unchar g ed robber y . The evidenc e showed that the prior, unchar g ed robber y provided the firea

rms that wer e involved in the con s pirac y to commit the planned robber y . There fore , the evidenc e is intrinsic, n o t ex t ri nsic, to the char g ed conspirac y , and Rule 404(b) analy sis was not require d. -5-United States v. Mc Gee& Porter

Nos. 11-1126, 11-1144 M c G e e notes that the district court initially excluded the evidenc e and chang ed its ruling afte r further argument from both parties. Howeve r, McGe e has not demonst ra t ed t h at any improper consideration cause d the district court to chang e its view, and its evidentiar y ruling was not an abuse of discre tion. 2. McGe e next argues that the g overnme nt produce d insufficient evidenc e to support his conviction for conspirac y to posse ss coca ine with intent to distribute. Specifica lly , McGe e claims that the g overnme nt failed to prese nt evidenc e that McGe e talked with Nether , that any one ever saw McGe e with a g un on the date of the planned robber y , or that McGe e ever enter ed the storag e fac ility wher e the a

rre sts were made. I n revie wing a claim of insufficient evidenc e, we usually ask whether “‘a ny rational trier of fac t could find the elements of the crime bey ond a rea sonable doubt’

. . . ‘view[ing] the evidenc e in the l ight m o s t favorable to the prosecution.’” United St ates v. W hite , 492 F.3d 380, 393 (6th Cir. 2007) (quoting United States v. M/G Transp. Servs., Inc. , 173 F.3d 584, 589 (6th Cir. 1999) ). But beca use McGe e’s counsel did not make a motion for acquittal, we revie w the t ri al re co rd to deter mine if a “manife st miscarr iag e of justice” occur red. United States v. Mack , 159 F.3d 208, 216 (6th Cir. 1998) (quoting United States v. W illiams , 940 F.2d 176, 180 (6th Cir. 1991)). A “manife st miscarr iag e of justice” occur s “‘only if the rec ord is devoid of evidenc e pointing to g uilt.’” United States v. W

alden , 625 F. 3 d 9 6 1 , 967-68 (6th Cir. 2010) (quoting United States v. Price , 134 F.3d 340, 350 (6th Cir. 1998)).

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Nos. 11-1126, 11-1144 To sustain a conviction for conspirac y under 21 U.S.C. § 846, the g overnme nt must prove: (1) an ag ree ment to violate drug laws; (2) knowledg e and inten t t o j oin the conspirac y ; and (3) participation i n t h e conspirac y . United States v. Deitz , 577 F.3d 672, 677 (6th Cir. 2009). I n McGe e’s trial, the g overnme nt prese nted evidenc e that in his conv er s at i o n with Nether McGe e ag ree d to violate drug laws. Fur ther, McGe e demonstrated his knowledg e and intent to join the conspirac y when he told Nether , “I ’m following lead baby , I ’m wit y a’ll, whateve r y a’ll, I ’m rollin.” McGe e also rec ruited Ba

rkley to join the robber

y , and Ba rkley saw McGe e with an assault rifle on the day of the planned robber y . Although McGe e argues that his driving awa y from the robber

y constituted a withdrawa l and repudiation of the conspirac y , this action is a “‘me re cessation’” of his criminal activity , and is not sufficie nt to demonstrate an aff irmative withdrawa l. See United States

v. C o x , 565 F.3d 1013, 1016 (6th Cir. 2009) (quoting United St ates v. L ash , 937 F.2d 1077, 1083 (6th Cir. 1991)). There fore , the g overnme nt produce d evidenc e of McGe e’s ag ree ment, knowledg e, intent, and participation. McGe e has failed to demons trate that his trial repr esente d a “manife st miscarr iag e of justice” and we find that sufficie nt evidence supports McGee ’s conviction. 3. McGe e argu es t hat he was prejudiced by his counsel’s failure to timely object to evidenc e of the prior robber

y and to move for acquittal at the end of the g overnme nt’s case and at the end of all of the e vidence . He c ites the delay in obje cting to the prior robber y evidenc e as motivating the district court’s chang e of ruling from excluding it to allowing it. He claims that the district court would likely

have g rante d counsel’s motion for a cquittal had it been ma de.

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Nos. 11-1126, 11-1144 We do not ordinarily enter tain ineffe ctive assistance of counsel claims on direc t revie w. See United S t a t es v. W

alden , 625 F.3d 961, 967 (6th Cir. 2010) (citing Massaro v. United States , 538 U.S. 500, 504-05 (2003); United States v. Lewis , 605 F.3d 395, 400 (6th Cir. 2010)). Given that there is no fac tual development in the rec ord reg arding counsel’s rea s o n i ng or trial strateg y , we adher e to this principle and rese rve co n s i d er at i on of this issue for revie w on a full rec ord, should McGe e choose to pursue his claims on collater al re view. 4. McGe e also challeng es his sentenc e as substantively unrea sonable beca use the district court g ave “an unreasona

ble amount of weight to

. . . McGe e’s .

. . offe nse l evel.” We revie w cr i m i nal sentenc es for abuse of discretion. United States v. Moon , 513 F.3d 527, 539 (6th Cir. 2008). I f the sentenc e falls within the advisory Guidelines rang e, we apply a presumption of rea sonablene ss. Gall

v. United States , 552 U.S. 38, 46-47 (2007); United States v. Anderson , 695 F.3d 390, 402 (6th Cir. 2012). A s entenc e may be subst antively unrea sonable if the d i s t ri ct court gives “an unreasonable amount of weig ht to any pertinent fac tor.” United States v. W ebb , 403 F.3d 373, 385 (6th Cir. 2005). McGe e re ceive d a sente nce of 204 months of imprisonment. I n addre ssing the § 3553( a) fac tors prior to i m posing sentenc e, the district court noted the seriousness of arme d robber y involving drug s, the need for g ener al and specific deter renc e, Mc G e e ’ s p r io r rec ord, his work history , his ag e, and his health. McGe e does not argue that the district court incorr ec t l y ca l cu lated the advisory Guidelines rang e or that it failed to consider the § 3553(a) fac tors. He argues only that the district court ga

ve undue weig ht to the s eriousness of the offense. Howeve r, McGee has failed to

overc ome the presumption of rea sonablene ss that attache s to his within-Guidelines sentenc e. There -8-United States v. Mc Gee& Porter

Nos. 11-1126, 11-1144 is no evidenc e in the rec ord that the district court considere d the seriousness o f the offe nse to the exclusion of other fac tors or that it g ave undue weig ht to that aspec t of the sentenc ing analy sis—as noted above, the district court considere d sever al fac tors and sentenc ed McGe e below the midpoint

o f h i s Gu i d eli nes rang e. Rather, McGe e’s argument amounts to a complaint that he would have pref err ed for the district court to have “per formed this ba lancing differ ently .” See United States v. Solinger , 464 F. App’x 485, 491-92 (6th Cir. 2012)

. As we have noted previously , “[t] he fac t that the di str i ct court did not g ive t he defenda nt the ex act sentence he sought is not a cognizable basis to appea l, particula

rly wher e the district court followed the mandate of section 3553(a) in all rele vant respe cts.” United States v. Trejo-Martinez , 481 F.3d 409, 413 (6th Cir. 2007 ). Be ca u s e t he sentenc ing court followed the § 3553(a) fac tors and sentenc ed McGe e to a presumptively rea sonable sentenc e within his applicable Guidelines rang e, which is uncontested by either party , we hold that McGe e’s se ntence was not substantively unrea sonable. B. We now turn our attention to Porter’s claims. Porter appea ls his conviction and sentenc e on t h e b as i s that (1) the district court improperly denied his motion to suppress his confe ssion as

coer ce d ; (2) the district court improperly applied an incre ased Sentencing Guidelines rang e for p o s s es sing a firea

rm; and (3) the district court improperly applied an incre ased Sentencing Guidelines rang e for a quantity of coca ine that was not confirme d as being involved in the offe nse. 1. Porter claims that the district court err ed in denying his motion to suppress his statement to police on the g round that it was involuntarily made. We cannot enter tain this claim beca

use Porter -9-United States v. Mc Gee& Porter

Nos. 11-1126, 11-1144 pled g uilty without rese rving the rig ht to appea l the district court’s ruling on his suppression motion. “[A] g uilty pleading defe ndant may not appea l an adver se pre- plea ruling on a suppression of evidenc e motion unless he has pre serve d the rig ht to do so by enter ing a

conditional plea of

g uilty in compliance with Fe d. R. Crim. P. 11(a) (2).” United States v. Herrera , 265 F.3d 349, 351 (6th Cir. 2001). Porter relies heavily on United States v. Finch , 998 F.2d 349 (6th Cir. 1993), for the principle that defe ndants who plead g uilty may still challeng e pre- plea denials of suppression motions. That

case is inapposite here , as the defe ndant in Finch enter ed a conditional plea of g uilty , expressly

rese rving the rig ht to appea l the denial of his motion to suppress. Finch , 998 F.2d at 351. Be cause Porter ente red a

plea without conditions, he is fore closed fr om raising this iss ue on appe al. 2. Porter also c halleng es the district court’s application, over his objection, of the sentenc ing enhanc ement pursuant to U.S.S.G. § 2D1.1(b)( 1). The district court’s application of the Guidelines

to the fac ts in Porter’s case is subject to de novo revie w. See United States v. Benson , 591 F.3d 491, 504 (6th Cir. 2010). The sentenc ing enhanc ement is proper ly applied if the g overnme nt has shown, by a preponde ranc e of the evidenc e, that the defe nd an t “a ct ually or constructively ‘possessed’ ” a

wea pon during the commission of the offe nse. United States v. Johnson , 344 F.3d 562, 565 (6th Cir. 2003) (quoting United States v. Pruitt , 156 F.3d 638, 649 (6th Cir. 1998)). Be cause Porter p l ed g uilty to a two-we ek conspirac y , he is also responsible for the rea sonably fore seea ble possession of g uns by his co-conspirators during that period. See id.

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Nos. 11-1126, 11-1144 Offic ers found g uns at Porter’s mother’s house. Porter told Nop t h at h e and others had

rec ently committed an armed hom e invasion and had stolen many g uns. He also told Nop t hat he would be bring ing a g un to the planned robber y and implied that he had many from which to choose: PORTER:

. . . That’s when I ’m coming up out that bathroom blasting, I ’m blasting, I ’m smoking. CW : Oh shit, what y ou umm, y ou g ot PORTER: Huh? CW : You g onna have uhh revolve r or uhh PORTER: Dawg , Ig ot me a commando. It doesn’t matter, I g ot so many

now These conver sations c ontribute to the g overnme nt’s showing , by a preponde ranc e of the evidenc e, that Porter actua lly or constructively possessed a wea pon during the per i o d of the char g ed conspirac y . Porter also directed his cre w t o retrie ve guns t o use i n the pl anned robbery

. On t he day of the robber

y , Porter announce d that the cre w had not broug ht g uns (“he ater s”) beca use eac h of them would retrie ve them at t h ei r near by homes and return quickly to commit the robber y . Ba rkley testified that McGe e t h en we n t to his house and returne d with an assault rifle. Be cause Porter direc ted the others to g et their gu ns, McGe e’s subsequent possession of a g un was rea sonably fore seea ble to Porter. Porter could have overc ome the application of the enhanc ement if he had prese nted sufficie nt evidenc e that “it [wa]s clea rly improb ab le that the wea pon [supporti ng the application of the enhanc ement] was connec ted with the offe nse.” U.S. Sentencing Guidelines Manual § 2D1.1, cmt. n.3 (2010); Johnson , 344 F.3d at 567. He prese nted no such evidenc e. Be cause the g overnme nt met it s burden to prove the application of the enhanc ement by a preponde ranc e of the evidenc e and

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Nos. 11-1126, 11-1144 beca use Porter failed to produce an y ev i d en ce that it was “cle arly improbable” that any of the rele vant wea

pons wer e connec ted to the conspirac y , we aff irm the district court’s application of the § 2D1.1(b)( 1) enha

nceme nt. 3. Porter’s f inal challeng e to his conviction and sente nce is that the district c ourt err ed in applying the drug quantity enhanc ement of U.S.S.G. § 2D1.1(c )(3)

. Application of the enhanc ement require s a district court’s finding of fac t reg arding the quantity of drug s i n v o l v ed in an offe nse, which is revie wed for clea r err or. United States v. Jones , 102 F.3d 804, 809 (6th Cir. 1996). I n this

case , the district court noted at Porter’s sentenc ing hear ing that the underc over ag ents sug g ested that the robber

y would involve approximately thirty kilogr ams of coca ine and that “[Porter] boug ht into that quantity

. . . [A] s far as the intent of [P orter], it was based on what the ag ent said, and the ag ent said that 30 was the number.” The dist rict court rea soned t hat “it’s afte r t he dis clos u re o f 3 0 t h at [P orter] ag ree d to ge t involved in this transac tion.” Porter argues that the underc over ag ents committed “sente ncing entra pment” or “sente ncing fac tor manipulation” when they indicated to him that thirty kilogr ams of coca ine would be involved in the robbery

. We have declined to rec og nize the def enses of sentenc ing entrapme nt or sentence manipulation in other case s and do so ag ain here

. See United States v. Guest , 564 F.3d 777, 781 (6th Cir. 2009); United States v. Gardne r , 488 F.3d 700, 716- 17 (6th Cir. 2007) (collec ting c ases) . As Porter does not c halleng e his pe rsonal responsibility for the conduct leading to his conviction, and his asser ted def en s es ar e unavailable to him here , we aff irm the district court’s application of the § 2D1.1(c )(3) enhanc ement. -12-United States v. Mc Gee& Porter

Nos. 11-1126, 11-1144 III. For the fore g oing r easons, we aff irm McGee and Porter’ s convictions and sente nces.

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