NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0455n.06
No. 16-4008 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. T. SHAWN YARBER, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Before: GIBBONS, KETHLEDGE, and DONALD, Circuit Judges. KETHLEDGE, Circuit Judge. T. Shawn Yarb er appeals his below-Guidelines sentence for various drug and gun convictions. We reject his argument and affirm. In May 2016, Yarber pleaded guilty to one co unt of conspiracy to distribute heroin in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1 )(C), and § 846; five counts of use of a communication facility to f acilitate a felony in violation of 21 U.S.C. § 843(b); and one count of being a felon in possession of a firearm in viola tion of 18 U.S.C. § 922(g). As part of his plea agreement, Yarber admitted that he was responsib le for the distribution of between one and three kilograms of heroin during the conspiracy. Yarbe r’s presentence investigation report calculated that his base offense level was 30 under the Se ntencing Guidelines. The report recommended two enhancements—one for possession of a firear m in the commission of a felony, the other for Yarber’s status as a career offender under § 4B1.1( b)(1)—resulting in an adjusted offense levelNo. 16-4008, United States v. Yarber

-2- of 34. Yarber’s criminal histor y category was VI, which gave him a Guidelines range of 262 to 327 months’ imprisonment. At sentencing, Yarber argued that he was a mid-level participant in the conspiracy, while the Government contended that he was “a higher-level participant. . . with a terrible past criminal history.” The court adopted the government’s view. In doing s o, the court referred to a chart that the government had apparently given to the court but not to Yarber. The chart itself lists each participant indicted in the conspiracy and their respective role s in it. The chart characterizes Yarber as a wholesale heroin traffi cker, which appears to be a less-responsible role than those of defendant Jermaine King (the “Head of organization”) and Rayshone Mitchell (“Large scale heroin trafficker”), but more respons ible than the other roles listed on the chart (such as “Mid level heroin trafficker” and “courier”). Yarber’s name was the third on the list, which apparently led the court to think that he wa s ranked third in the conspiracy. But the court said that the putative ranking was not important to its determination of Yarber’s sentence. The court sentenced Yarber to 210 months’ imprisonment. This appeal followed. Yarber argues that that the district court violated his due process rights and Federal Rule of Criminal Procedure 32 when it relied on ev idence that had not been disclosed to him— namely, the conspiracy chart. Yarber did not ob ject to the court’s reference to the chart during his sentencing hearing. Hence we review his argument only for plain error. See United States v.
Vonner , 516 F.3d 382, 385 (6th Cir. 2008). Under that standard, Yarber must show (among other things) that the alleged error affected his substantial rights, i.e. , that it “affected the outcome of the district court proceedings.” Puckett v. United States , 556 U.S. 129, 135 (2009). To make that showing, Yarber must show that the district cour t’s reliance on the chart increased his sentence. To that end, Yarber argu es that the chart unfairl y characterized him as aNo. 16-4008, United States v. Yarber

-3- “wholesale heroin trafficker” instea d of a mid-level participant. But Yarber admitted in his plea colloquy that he was responsible for between one and three kilograms of heroin. Those are indisputably wholesale quantities. Moreover, the chart was “of th e same character, allow[ed] the same inferences, and, most importantly, [was] s ubject to the same argu ments in rebuttal as evidence in the record of which [Yarber was] already aware.” See United States v. Meeker , 411 F.3d 736, 743 (6th Cir. 2005). The chart’s ch aracterization of Yarber as a wholesale distributor therefore di d not affect Yarber’s substantial rights. Yarber also contends that the chart led the court to think he was ranked third in the conspiracy. The court indeed said as much, but less clear is that the ranking made any difference to Yarber’s sentence. Instead, the court itself emphasized that “[w]hether you are number three or number four or number two re ally doesn’t matter. You are up there in this pyramid, this conspiracy pyramid.” And the r ecord otherwise makes clear that Yarber’s drug quantity and his extensive criminal record were the bases for hi s sentence, which itself was 52 months below his Guidelines range. Thus, the chart did not “affect the district court’s se lection of the sentence imposed.” See United States v. Alford , 436 F.3d 677, 682 (6th Cir. 2006). There was no plain

error. The district court’s judgment is affirmed.