NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0081n.06

No. 21-1663

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ADAM DEAN BROWN,

Defendant-Appellant.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

OPINION

Before: GILMAN, McKEAGUE, and GRIFFIN, Circuit Judges.

GRIFFIN, Circuit Judge.

A jury convicted defendant Adam Brown on three drug-trafficking charges. His prior 

felony drug offense and the jury’s findingsthat the fentanyl he distributed resulted in serious bodily 

injury and death mandated an enhanced sentence of life imprisonment under 21 U.S.C. 

§ 841(b)(1)(C). On appeal, he raises several challenges to his convictions and sentence. Because 

intervening caselaw mandates reversal with respect to the enhanced sentence that he received for 

his conviction for conspiracy to distribute and possess with intent to distribute controlled 

substances in violation of 21 U.S.C. § 846, with a death-resulting enhancement, we vacate his 

sentence with respect to count one. The remainder of his appeal is without merit. Accordingly,

we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.
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I.

Brown’s appeal involves several aspects of 21 U.S.C. § 841. Subsection (a) makes it 

unlawful for an individual to, among other things, distribute a controlled substance, and subsection 

(b) sets forth mandatory minimum and maximum sentences that depend upon the weight and type 

of controlled substance, the individual’s criminal history, and whether the distributed substance 

resulted in serious bodily injury or death. Section 846 criminalizes attempt and conspiracy to 

commit the distribution of a controlled substance, and subjects those convicted “to the same 

penalties as those prescribed for the offense.” 

Section 841(b)(1)(C) is the applicable penalty provision for Brown, which applies to the 

distribution of “a controlled substance in schedule I or II” (including fentanyl). It has a few tiers. 

The lowest is a twenty-year maximum sentence, which increases to thirty if a defendant violates 

§ 841(a) “after a prior conviction for a felony drug offense has become final.” But if “death or 

serious bodily injury results from the use of such [controlled] substance,” § 841(b)(1)(C) mandates 

a twenty-year minimum sentence. And as with Brown’s case, that mandatory minimum increases 

to life imprisonment with the presence of a prior felony drug conviction. 

Here, a grand jury indicted Brown and two others on various drug crimes for their role in 

distributing fentanyl that resulted in the overdoses of two individuals struggling with opioid 

addiction, Alexander Brenner and Jeffrey Keon. Relevant to this appeal are three charges: 

conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 

21 U.S.C. § 846, with a death-resulting enhancement (count one); distribution of a controlled 

substance, in violation of 21 U.S.C. § 841, with a death-resulting enhancement (count five); and 
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distribution of a controlled substance, in violation of 21 U.S.C. § 841, with a serious-bodily injury 

enhancement (count six).1

A jury convicted Brown on all three counts and found him responsible for Brenner’s death 

and Keon’s serious bodily injury. With those findings, and Brown’s prior felony drug convictions, 

the district court imposed mandatory terms of life imprisonment on counts one and six under 

§ 841(b)(1)(C), and three hundred sixty months on the remaining counts, all concurrent with each 

other. 

With this background, we turn to defendant’s numerous claims on appeal. 

II.

Brown raises two issues concerning his conviction for distributing a controlled substance

in violation of 21 U.S.C. § 841, that resulted in Jeffrey Keon’s serious bodily injury (count six): 

(1) the sufficiency of the evidence supporting the conviction; and (2) whether the district court’s 

evidentiary rulings concerning the admissibility of certain text messages post-Keon’s death 

infringed upon Brown’s right to present a defense. 

A.

The crime of distributing a controlled substance resulting in serious bodily injury under 

§ 841 requires a jury to find both (1) knowing or intentional distribution of a controlled substance,

and (2) serious bodily injury caused by the use of that drug. Burrage v. United States, 571 U.S. 

204, 210 (2014). The indictment here charged Brown with distributing a mixture and substance 

that contained a detectable amount of fentanyl. Importantly, the government was not required to 

establish Brown knew that what he distributed had fentanyl; rather, all that was necessary is proof 

1The grand jury also charged Brown with two counts of possession with intent to distribute 

a controlled substance, in violation of 21 U.S.C. § 841, to which he pleaded guilty before trial. 

Brown does not raise any issues regarding these convictions in this appeal.
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that he distributed a controlled substance. See United States v. Mahaffey, 983 F.3d 238, 242–43 

(6th Cir. 2020). The government must also establish causation—that Keon’s serious bodily injury 

“result[ed] from” Brown’s conduct. § 841(b)(1)(C). Under Burrage, “where use of the drug 

distributed by the defendant is not an independently sufficient cause of the victim’s death or serious 

bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. 

§ 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” 571 U.S. at 218–19. 

We must uphold a jury’s conviction if, “after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We can 

sustain a conviction based on circumstantial evidence alone, and the evidence need not disprove 

every hypothesis except that of guilt. United States v. Lindo, 18 F.3d 353, 357 (6th Cir. 1994). A 

sufficiency claim does not allow us to “weigh the evidence presented, consider the credibility of 

witnesses, or substitute our judgment for that of the jury.” United States v. Jackson, 470 F.3d 299, 

309 (6th Cir. 2006) (citation omitted). Rather, we “draw all available inferences and resolve all 

issues of credibility in favor of the jury’s verdict.” Id. (citation omitted). 

This standard is a “high bar” to clear. United States v. Persaud, 866 F.3d 371, 379–80 

(6th Cir. 2017). For Brown’s appeal, it is even more so. At trial, he moved for a judgment of 

acquittal under Federal Rule of Criminal Procedure 29, arguing that Keon sourced drugs from 

various dealers and that no eyewitness observed Brown give Keon a controlled substance. But his 

briefing here advances a different argument, contending that the evidence showed Keon overdosed 

not from fentanyl, but from benzodiazepine. Given the specificity of his Rule 29 motion, Brown 
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forfeited the new ground for appeal he now advances.2 See United States v. LaVictor, 848 F.3d 

428, 457 (6th Cir. 2017). So our review is even “more lenient.” United States v. Woods, 14 F.4th 

544, 555 (6th Cir. 2021). We apply the “manifest miscarriage of justice” standard, under which 

Brown can succeed only if the record is “devoid of evidence pointing to guilt.” Id. (citations 

omitted). 

Brown cannot make that showing. The record reveals that Keon was a regular customer of 

Brown’s. The two had recently texted about Brown’s access to “fire white”—which the jury heard 

means fentanyl (to which Brown was previously connected)—and eventually consummated a drug 

deal. Cell-phone records demonstrate that the two talked briefly on January 24, 2018, and met up 

shortly thereafter. The jury heard from Keon’s mother describing Keon’s awareness of the drug’s 

potency—she witnessed him return home on that day, enter his bedroom, come out to say,

“Whatever happens, don’t call 911,” and then collapse. It also learned that three doses of the 

opioid-overdose-countering Narcan were needed to revive Keon and that, while Keon was 

recovering at the hospital, his mother found a baggie with drugs wrapped in tinfoil. The jury was 

presented with heartbreaking evidence that Keon’s mother told Keon where she had hidden those 

drugs after he persistently asked where they were, and that he died from a fentanyl overdose the 

following day. Finally, the jury heard from a medical expert that fentanyl toxicity caused the first 

overdose and Keon’s death. In sum, the record here is nowhere close to being devoid of evidence 

pointing to guilt. 

2Brown disagrees. He contends that he “made a general Rule 29 motion at the close of the 

Government’s case,” which he renewed at the end of his proofs, preserving all grounds for appeal. 

But that is not what the record reflects. Rather, Brown’s attorney asked the district court to “hold”

presenting his Rule 29 motion pending his proofs, and then told the district court at the end of his 

proofs that he was renewing it and would be filing a written motion shortly. It was in that written 

motion that Brown made a specific, and not general, motion for a judgment of acquittal. 
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Brown resists this conclusion by noting that the hospital’s drug screen was positive for 

benzodiazepine and negative for fentanyl, and thus suggests that the jury convicted Brown of 

distributing benzodiazepine (which was not charged in the indictment). But the jury was presented 

with an explanation for both—a benzodiazepine overdose differs from one induced by fentanyl 

(namely, an overdose of benzodiazepine cannot be reversed by Narcan), and the hospital’s 

urinalysis test was not capable of detecting fentanyl. Indeed, it is not disputed that Keon died of a 

fentanyl overdose the very next day, and the record evidence suggests the source of those drugs 

(the bag hidden by his mother) was the same drugs he purchased from Brown that led to the first 

overdose. 

For these reasons, defendant’s sufficiency-of-the-evidence challenge is without merit. 

B.

Brown’s other challenge to his serious-bodily-injuring-distribution-of-fentanyl conviction 

for Keon is an evidentiary one packaged in constitutional terms. After Keon’s death (but before 

Brown learned of it), Brown reached out to Keon, texting: “Damn, Bro. What happened to 

you . . . ?” Law enforcement officials investigating Keon’s death decided to impersonate Keon 

and exchanged text messages with Brown. The gist of the exchange was Brown proclaiming that 

what he had delivered to Keon was not what had caused the overdose. The government objected 

to the introduction of these text messages on hearsay grounds. Brown responded that they were 

admissible under the rule of completeness or under Rule 803 as evidence of Brown’s state of mind. 

The district court sustained the government’s objection as inadmissible hearsay. Brown contends 

on appeal that the district court erroneously kept out of evidence these text messages, resulting in 

the denial of his right to “a meaningful opportunity to present a complete defense.” Crane v. 

Kentucky, 476 U.S. 683, 690 (1986) (citation omitted). We do not agree. 
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“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a 

complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane,

476 U.S. at 690). However, “the Supreme Court has made it perfectly clear that the right to present

a ‘complete’ defense is not an unlimited right to ride roughshod over reasonable evidentiary

restrictions.” Rockwell v. Yukins, 341 F.3d 507, 512 (6th Cir. 2003) (en banc). “A defendant ‘does 

not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise 

inadmissible under standard rules of evidence.’” Id. (quoting Taylor v. Illinois, 484 U.S. 400, 410 

(1988)). 

“[E]rroneous evidentiary rulings rarely constitute a violation of a defendant’s right to 

present a defense.” United States v. Hardy, 586 F.3d 1040, 1044 (6th Cir. 2014). The exclusion 

of defense evidence violates a defendant’s constitutional right to present a defense only where it 

is “arbitrary” or “disproportionate”; that is, where “important defense evidence” is excluded 

without serving “any legitimate interests” or in a manner that is “disproportionate to the ends that 

[the rationale for exclusion is] asserted to promote.” Holmes, 547 U.S. at 324–26 (internal 

quotation marks omitted). To prevail, a defendant must show that an arbitrary or disproportionate 

exclusion of evidence, “evaluated in the context of the entire record[,] creates a reasonable doubt 

that did not otherwise exist.” United States v. Blackwell, 459 F.3d 739, 753 (6th Cir. 2006) 

(brackets and citation omitted). 

Generally, “[w]here a defendant attacks an evidentiary ruling as violating the Sixth 

Amendment, review of the legal aspects of the constitutional violation is de novo.” United States

v. Reichert, 747 F.3d 445, 453 (6th Cir. 2014). But Brown has a forfeiture problem. Below, he 

neither challenged the district court’s evidentiary rulings on a constitutional basis nor advanced 

the arguments supporting this claim—that the evidence was both exculpatory and represented 
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“a present sense impression of the events surrounding Keon’s overdose.” We must therefore view 

Brown’s claim through the more demanding plain-error lens. See United States v. Cromer, 

389 F.3d 662, 672 (6th Cir. 2004) (“Plain error review applies even if the forfeited assignment of 

error is a constitutional error.”). Plain error means: “(1) an error occurred; (2) the error was 

obvious or clear; (3) the error affected [the defendant’s] substantial rights; and (4) the error 

seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United 

States v. Mayberry, 540 F.3d 506, 512 (6th Cir. 2008) (citation omitted). 

Brown cannot satisfy these compounding, demanding standards. The district court 

correctly kept the messages out as inadmissible hearsay, and Brown makes no argument to the 

contrary here. He argues, rather, that the text messages he sent corroborate his story—that “Brown 

did not give Keon anything since ‘last week,’” and “that the drugs Brown gave Keon were nothing 

different than he normally provided – i.e., heroin.” Stated differently, Brown asks that we should 

take his text messages for the truth of the matter asserted because they support his claim of 

innocence. 

“The principle that undergirds [Brown]’s right to present exculpatory evidence is also the 

source of essential limitations on the right.” Taylor, 484 U.S. at 410. That includes the reasonable 

limitations set forth in the rules of evidence prohibiting the introduction of hearsay. No case 

permits a defendant to introduce anything he pleases, even if exculpatory. Rather, the caselaw has 

uniformly rejected such a broad view. See Rockwell, 341 F.3d at 512; see also United States v. 

Kerley, 784 F.3d 327, 342 (6th Cir. 2015) (finding no violation of a right to present a defense when 

the evidence was inadmissible hearsay). And regardless, Brown was still able to tell the jury his 

version of the facts, including that he did not deliver fentanyl to Keon. 

Brown has not demonstrated any error, let alone plain error. 
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III.

Brown raises three issues concerning his two convictions stemming from the overdose

death of Alexander Brenner—conspiracy to distribute and possess with intent to distribute 

controlled substances, in violation of 21 U.S.C. § 846, with a death-resulting enhancement (count 

one), and distribution of a controlled substance, in violation of 21 U.S.C. § 841, without a deathresulting enhancement (count five). He challenges (1) the district court’s admission into evidence 

of a co-conspirator’s plea agreement, (2) its jury instruction for count one, and (3) its interpretation 

of the jury’s verdict form for count five. 

A.

Count one of the first superseding indictment charged Brown, Terence Robinson, and one 

other for conspiracy to distribute and possess with intent to distribute controlled substances, in 

violation of 21 U.S.C. § 846, with a death-resulting enhancement. This charge arose from 

Alexander Brenner arranging with Robinson for the purchase of what they thought was heroin 

from Brown, as the pair had done previously. Brenner fatally overdosed on the substance, which 

turned out to be fentanyl.

Robinson pleaded guilty to this charge pursuant to a plea agreement and agreed to testify 

at Brown’s trial. During Robinson’s testimony, the district court received into evidence (over 

Brown’s objection) copies of Robinson’s plea and cooperation agreements. Specifically, the 

district court cited our decision in United States v. Townsend, which provides that the “introduction 

of the entire plea agreement [does not] improperly bolster [a witness]’s credibility”; rather, doing 

so “permits the jury to consider fully the possible conflicting motivations underlying the witness’

testimony and, thus, enables the jury to more accurately assess the witness’ credibility.” 796 F.2d 

158, 163 (6th Cir. 1986). 
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We review a district court’s decision to admit evidence over a defendant’s objection under 

the abuse-of-discretion standard. See United States v. Mack, 808 F.3d 1074, 1084 (6th Cir. 2015). 

“When reviewing for abuse of discretion, we view ‘the evidence in the light most favorable to its 

proponent, giving the evidence its maximum reasonable probative force and its minimum 

reasonable prejudicial value.’” United States v. Deitz, 577 F.3d 672, 688 (6th Cir. 2009) (citation 

omitted). The question is not whether the evidence is prejudicial, but whether it is unfairly so.

Unfair prejudice “does not mean the damage to the defendant’s case that results from the legitimate 

probative force of the evidence; rather, it refers to evidence which tends to suggest decision on an 

improper basis.” United States v. Mendez–Ortiz, 810 F.2d 76, 79 (6th Cir. 1986). “We reverse 

only where the district court’s erroneous admission of evidence affects a substantial right of the 

party.” United States v. White, 492 F.3d 380, 398 (6th Cir. 2007) (citing Fed. R. Evid. 103(a)).

In Brown’s view, the district court abused its discretion in admitting evidence of 

Robinson’s plea agreement because the agreement was proof positive of a substantive element of 

the crime that both Robinson and Brown were charged—a conspiracy to deliver drugs. But our 

caselaw plainly permits the government to introduce such evidence to help the jury assess that 

witness’s credibility. See Townsend, 796 F.2d at 163; United States v. Tocco, 200 F.3d 401, 416 

(6th Cir. 2000). And it may do so prophylactically in order “to blunt defense efforts at 

impeachment and dispel the suggestion that the government or its witness has something to hide.” 

United Sates v. Christian, 786 F.2d 203, 214 (6th Cir. 1986); see also Tocco, 200 F.3d at 416–17 

(“The prosecutor may refer to such agreement in appropriate circumstances to deflect defendant’s 

use of a plea agreement to attack the witness’ credibility.”). It was for this purpose that the 

government sought to introduce Robinson’s plea agreement.
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And our precedent tempers Brown’s prejudice concerns. True, we have said, it can be 

prejudicial for a coconspirator who pleaded guilty to testify against another at trial, but “much of 

this potential for prejudice is negated when the pleading codefendant testifies regarding the 

specific facts underlying the crimes in issue.” United States v. Thornton, 609 F.3d 373, 378 

(6th Cir. 2010) (ellipsis and citation omitted); see also United States v. Gray, 87 F.3d 1315, at *3 

(6th Cir. June 3, 1996) (table op); United States v. Walker, 871 F.2d 1298, 1303–04 (6th Cir. 1989). 

That is what happened here, as Robinson extensively testified about his role in helping Brenner 

secure the drugs from Brown. Moreover, the jury heard about Robinson’s “motivation for 

testifying” and his “potential sentence, so [Brown] cannot legitimately claim this information 

prejudiced him.” Thornton, 609 F.3d at 378.

Two more points cut against Brown. First, there is no evidence that the government used 

the plea agreement for any improper purpose, such as in its closing argument. Id.; United States 

v. Carson, 560 F.3d 566, 575 (6th Cir. 2009). Second, the district court here gave a jury instruction 

cautioning that “[t]he fact that Terence Robinson has pled guilty to a crime is not evidence that 

[Brown] is guilty, and [you] cannot consider this against [Brown] in anyway.” These pointsfurther 

weaken Brown’s “I was prejudiced” position. See Thornton, 609 F.3d at 378; Walker, 871 F.2d at 

1304. 

For these reasons, the district court did not abuse its discretion when it admitted into 

evidence Robinson’s plea and cooperation agreements. 

C.

Brown next contends that the district court erroneously instructed the jury regarding the 

death-resulting enhancement for count one—the conspiracy to distribute and possess with intent 

to distribute controlled substances, in violation of 21 U.S.C. § 846. It gave a Pinkerton instruction 
No. 21-1663, United States v. Brown

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on this issue, which “permits conviction of a conspirator for the substantive offenses of other 

conspirators committed during and in furtherance of the conspiracy.” United States v. Martin, 920 

F.2d 345, 348 (6th Cir. 1990). The instruction provided that the jury need consider only “whether 

Alexander Brenner’s death resulted from the distribution of the heroin or fentanyl by a member of 

the conspiracy.” Brown contends this misstated the law by failing to instruct the jury that it must 

find that Brown was in the chain of distribution that caused Brenner’s death. Having not advanced 

that objection below, we review under the plain-error standard. See United States v. Stewart, 729 

F.3d 517, 530 (6th Cir. 2013). This means that we must find that “taken as a whole, the jury 

instructions were so clearly erroneous as to likely produce a grave miscarriage of justice.” United 

States v. Newsom, 452 F.3d 593, 605 (6th Cir. 2006) (citation omitted). 

As the government correctly concedes, Brown has satisfied this standard. We recently 

reiterated (albeit after Brown’s trial) that “[w]hen a defendant’s underlying crime relies on a 

conspiracy theory of liability, then the district court cannot impose the enhanced sentence unless 

the jury finds that the defendant was part of the distribution chain that led to the victim’s overdose.” 

United States v. Sadler, 24 F.4th 515, 560 (6th Cir. 2022); see also United States v. Williams, 

998 F.3d 716, 734 (6th Cir. 2021); United States v. Hamm, 952 F.3d 728, 747 (6th Cir. 2020); 

United States v. Swiney, 203 F.3d 397, 406 (6th Cir. 2000). Failing to give such an instruction 

constitutes plain error, Sadler, 24 F.4th at 561, which had a substantial effect on Brown’s rights—

here the jury found Brown guilty on count one for the distribution of the fentanyl that killed 

Brenner under the Pinkerton theory’s “lower standard.” Id. 

As for a remedy, Sadler provides that we must vacate Brown’s sentence for count one and 

“remand for a new trial on the sole question of whether [Brown] was within the chain of 

distribution as required before imposing an enhanced sentence under 21 U.S.C. § 841(b)(1)(C).” 
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Id. at 562, 564. The government asserts that it will not retry Brown on the chain-of-custody issue 

if we affirm his conviction for count six (which, as set forth above, we do) and thus requests that 

we just remand to correct the judgment for count one. We decline to do so, and will instead leave 

it to the district court to address on remand. Bound by Sadler, we therefore vacate Brown’s 

sentence with respect to count one and remand for further proceedings consistent with this opinion.

D.

The last issue with respect to Brenner’s overdose death involves an interpretation of the 

jury’s verdict for count five. 

Under Alleyne v. United States, the Sixth Amendment requires that “[a]ny fact that, by law, 

increases the penalty for a crime . . . must be submitted to the jury and found beyond a reasonable 

doubt.” 570 U.S. 99, 103 (2013). This includes § 841(b)’s sentencing enhancements. Burrage, 

571 U.S. at 210. And § 841(b)(1)(C) applies to convictions related to the distribution of “a 

controlled substance in schedule I or II,” with fentanyl being a schedule II opioid. Unlike other 

portions of § 841(b), this provision does not have a drug-weight requirement. 

The jury’s verdict form found Brown guilty of distributing a controlled substance as set 

forth in count five of the indictment, but that the government failed to “prove[] beyond a reasonable 

doubt that Alexander Brenner would not have died but for the use of the same fentanyl distributed 

by [Brown].” The jury’s findings here, combined with his prior felony drug convictions (more on 

this below), meant that his statutory range increased to not more than thirty years in prison. See 

§ 841(b)(1)(C). 

Brown contends the jury rendered a general verdict—that it found only that he distributed 

a “controlled substance” but did not find that the substance was fentanyl as required for the 

§ 841(b)(1)(C) enhancement. So, he states, “[t]he jury’s verdict only supports a conviction for an 
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unnamed amount of drugs, with no quantity,” and therefore the statutory enhancement cannot 

apply. He thus suggests that, because the jury declined to impose the death-resulting enhancement, 

it necessarily rejected a finding that fentanyl was the controlled substance supporting his 

conviction. Brown having raised this issue below, our review is de novo. United States v. 

Copeland, 321 F.3d 582, 601 (6th Cir. 2003). 

The applicable indictment charged Brown in count five with distributing a controlled 

substance, in violation of § 841(a)(1). And it sets forth that the controlled substance was fentanyl. 

The jury instructions also made this expressly clear, which emphasized that fentanyl was the

charged controlled substance.

With this background, we can easily reject Brown’s challenge to the jury verdict. Criminal 

trials and their resulting judgments flow from “the language of the indictment, the evidence 

presented at trial, the jury instructions and the verdict forms utilized by the jury.” United States v. 

Kuehne, 547 F.3d 667, 683–84 (6th Cir. 2008). More to the point, we do not view verdict forms 

in isolation; rather, they come with “a user’s manual: the jury instructions. So we evaluate the 

verdict form in the context of the instructions as a whole[.]” Moody v. United States, 958 F.3d 

485, 491 (6th Cir. 2020); see also Slaughter v. Parker, 450 F.3d 224, 241 (6th Cir. 2006) (“We 

must consider the verdict form in conjunction with the jury instructions.”). Here the indictment 

and the jury instructions “ensured that the jury knew” that fentanyl was the controlled substance 

charged in count five. Woods, 14 F.4th at 553. Nor does it matter that the jury made no factual 

findings concerning quantities—“when specific quantities are not alleged, . . . § 841(b)(1)(C) . . . 

establishes the default statutory maximum sentences and does not require as an element of the 

offense a specific quantity of drugs.” United States v. Stewart, 306 F.3d 295, 310 (6th Cir. 2002). 

In sum, the jury returned a specific, not general, verdict. 
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Brown’s argument to the contrary conflates the jury’s two findings: that the government 

proved beyond a reasonable doubt that Brown distributed fentanyl, but that the government failed 

to prove beyond a reasonable doubt that the fentanyl was Brenner’s but-for cause of death. Just 

because the jury found in the government’s favor on one, but in Brown’s favor on the other, cannot 

mean that the jury “rejected fentanyl.” 

For these reasons, defendant’s claim of error here is without merit. 

IV.

Finally, Brown raises a few issues concerning his sentence that are not tethered to his 

specific counts of conviction. 

A.

First, Brown takes issue with the content of the 21 U.S.C. § 851 notice. That section sets 

forth the procedure required before a court may impose a conviction-based enhancement under 

§ 841(b). It provides that “[n]o person who stands convicted of an offense under this part shall be 

sentenced to increased punishment by reason of one or more prior convictions, unless before trial, 

or before entry of a plea of guilty, the United States attorney files an information with the court 

(and serves a copy of such information on the person or counsel for the person) stating in writing 

the previous convictions to be relied upon.” § 851(a)(1). A district court must then—after 

conviction but before pronouncement of sentence—“inquire of the person with respect to whom 

the information was filed whether he affirms or denies that he has been previously convicted as 

alleged in the information, and shall inform him that any challenge to a prior conviction which is 

not made before sentence is imposed may not thereafter be raised to attack the sentence.” § 851(b). 

Section 851(c) then sets forth what a district court must do if a person denies or otherwise claims 

a conviction is invalid. 
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The government filed a § 851 sentencing enhancement notice. It identified four “prior 

felony drug convictions that the government [would] rely upon at sentencing”: convictions in 

March 2001, January 2009, and March 2009 for “deliver/manufacture of a controlled substance,” 

in violation of M.C.L. § 333.7401(a)(a)(iv), and a conviction in March 2009 for “imitation, 

manufacture or distribution” of a controlled substance, in violation of M.C.L. § 333.7341(3). 

In this appeal, Brown argues the notice failed to inform him of the possibility of a 

mandatory life sentence. He does not draw this here-is-what-the-penalty-could-be requirement 

from the text of § 851. Nor could he, for the text does not mandate one—all it requires is that the 

government “stat[e] in writing the previous convictions to be relied upon.” § 851(a)(1); see also 

United States v. Vanness, 85 F.3d 661, 663 (D.C. Cir. 1996) (“The statute does not burden the 

government with the duty of advising defendants of sentencing consequences.”). Rather, Brown 

argues we should infer the requirement from the statute’s “purpose”: it “was designed to satisfy 

the requirements of due process and provide the defendant with reasonable notice and an 

opportunity to be heard regarding the possibility of an enhanced sentence for recidivism.” United

States v. Pritchett, 496 F.3d 537, 548 (6th Cir. 2007) (citation omitted). Brown having failed to 

object to the content of the notice below, we review for plain error. See United States v. Gonzalez, 

512 F.3d 285, 288 (6th Cir. 2008). 

There was no plain error here. Fatal to Brown’s challenge is that no binding caselaw 

required the government to set forth such information in the § 851 notice. See United States v. AlMaliki, 787 F.3d 784, 794 (6th Cir. 2015). Given that the unambiguous language of the statute 

imposes no such requirement, it logically follows that there is no caselaw requiring such a 

command through purposivism. See Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Equally 

fatal for Brown is a lack of effect on his substantial rights—he twice acknowledged the possibility 
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of mandatory life sentences, he was present in court when the government set forth his exposure 

to mandatory life sentences if the government filed § 851 enhancements when the parties were 

engaged in plea bargaining, and his attorney acknowledged that possibility when responding to the 

government’s § 851 notice. Cf. United States v. King, 127 F.3d 483, 489 (6th Cir. 1997) (“[I]t is 

undisputed that prior to trial the prosecuting attorney and defense counsel discussed the potential 

enhancement, including the offense upon which it would be based.”). 

B.

The next issue is a well-worn Sixth Amendment challenge. As set forth, the Supreme Court 

has interpreted the Sixth Amendment to require that a jury decide any fact that increases minimum 

and maximum sentences, including those set forth in § 841(b)’s sentencing enhancements. 

Burrage, 571 U.S. at 210 (citing Alleyne, 570 U.S. at 114–16; Apprendi v. New Jersey, 530 U.S. 

466, 490 (2000)). In Brown’s view, his jury was required to find two facts supporting his 

§ 841(b)(1)(C) enhancement: (1) that he had a “prior conviction for a felony drug offense [that] 

has become final”; and (2) the type and quantity of the drug he distributed that resulted in death 

or serious bodily injury. As to the latter, the jury made the requisite finding regarding his 

distribution of fentanyl resulting in Keon’s serious bodily injury and was not required to make any 

quantity findings for that distribution. See Stewart, 306 F.3d at 310. So, although he couches his 

argument as this being a mandatory “dual finding,” his objection here really just goes to the 

former—that the jury made no factual findings concerning his prior felony drug convictions 

supporting the enhancement. Brown raised this argument below, so we review de novo. United 

States v. Moore, 643 F.3d 451, 454 (6th Cir. 2011). 

Binding precedent forecloses Brown’s claim. Almendarez-Torres v. United States

expressly carved out an exception to this general jury-fact-finding rule for facts of prior 
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convictions. See 523 U.S. 224, 226–29 (1998). Although Almendarez-Torres came before 

Apprendi and Alleyne, our caselaw makes clear that it remains good law. See, e.g., Moody, 958 

F.3d at 491; United States v. Young, 847 F.3d 328, 369 (6th Cir. 2017); United States v. Nagy, 

760 F.3d 485, 488 (6th Cir. 2014). And we have said so in the face of a challenge to an 

enhancement under § 851 for a prior felony drug offense. Young, 847 F.3d at 369. 

Recent caselaw suggests that this exception might not apply to the First Step Act of 2018’s 

revisions to § 851. See United States v. Fields, 53 F.4th 1027, 1036–38 (6th Cir. 2022). That 

matter addressed a § 841(b)(1)(A)(viii) enhancement, wherein the defendant received a twentyfive year mandatory minimum sentence for possessing 500 grams or more of methamphetamine 

with intent to distribute given his two prior convictions for “serious drug felon[ies].” Id. at 1031. 

In dicta, we commented that because a “serious drug felony” under the First Step Act is “(1) a 

‘serious drug offense’ under 18 U.S.C. § 924(e)(2)(A), for which the defendant (2) served over a 

year in prison and (3) was released within fifteen years of the commencement of the instant 

offense,” and because Almendarez-Torres is a “narrow exception to the general rule,” that it makes 

“intuitive” sense “that the Sixth Amendment would require the jury to decide whether, for each 

prior conviction, [a defendant] was incarcerated for over a year and released within fifteen years 

of the instant offense.” Id. at 1031, 1036–37. But we ultimately declined to decide the issue 

because, in that matter, “those facts were actually submitted to the jury.” Id. at 1038. 

Brown argues that “Fields requires this Court to remand for resentencing without the 

21 U.S.C. § 851 enhancement.” Not so. For one, Fields did not address the issue, and we are not 

bound by its dicta. And for another, and more importantly, Fields dealt with a different 

enhancement—one falling under § 841(b)(1)(A) for a “serious drug felony.” Here, Brown 

received an enhancement under § 841(b)(1)(C)’s “felony drug offense.” It is a different definition, 
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compare 21 U.S.C. § 802(44), with (57), and one that used to be applicable to §§ (b)(1)(A) and 

(B) until the First Step Act modified those subsections, see Fields, 53 F.4th at 1031; see also First 

Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5220–21. 

For these reasons, Brown’s claim of error on this issue is meritless. 

C.

Brown also takes issue with the district court’s conclusion that his various Michigan 

convictions for cocaine distribution qualified as a “prior conviction for a felony drug offense” for 

purposes of § 841(b)(1)(C)’s enhancement. 

A “felony drug offense” is “an offense that is punishable by imprisonment for more than 

one year under any law of the United States or of a State or foreign country that prohibits or 

restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or 

stimulant substances.” § 802(44) (emphasis added). Because of the “relating to” language, we 

have commented that this definition is expansive, and necessarily includes more conduct than the 

Guideline’s narrower definition of “controlled substance offense.” United States v. Spikes, 

158 F.3d 913, 932 (6th Cir. 1998) (discussing U.S.S.G. § 4B1.2(2)). 

Our focus is on Brown’s three prior convictions for cocaine distribution under 

M.C.L. § 333.7401(a)(2)(a)(iv). Before the district court, Brown acknowledged that our existing, 

albeit unpublished, caselaw provided that we do not employ the categorical approach when 

determining whether a prior conviction constitutes a “felony drug offense” for § 841(b) purposes. 

See United States v. Soto, 8 F. App’x 535, 541 (6th Cir. 2001). But he argued that if we were to 

do so (like other circuits), his convictions for distributing cocaine under Michigan law swept 
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“broader than the federal definition.”3 Although not the model of clarity, his overbreadth argument 

below was that Michigan’s substantive definition of cocaine as set forth in its statutory schedules 

is broader than the federal schedules. Compare 21 U.S.C. § 802(17), with M.C.L. 

§ 333.7214(a)(iv).

Brown abandoned that specific, cocaine-based overbreadth argument and instead presses a 

newer, broader one on appeal. He asserts that Michigan’s drug-distribution statute criminalizes a 

broader swath of conduct than the federal definition of “conduct relating to narcotic drugs” because 

Michigan law defines “controlled substance” as not just “a drug,” but also a “substance, or 

immediate precursor.” M.C.L. § 333.7104(3). So plain-error review applies again. 

That demanding standard mandates Brown’s loss on this issue. There is no binding circuit 

precedent holding that Michigan’s controlled-substances statute prohibits more conduct than 

§ 841’s definition of a “felony drug offense” on the basis that M.C.L. § 333.7401(2)(a)(iv) also 

criminalizes substances and immediate precursors. See Al-Maliki, 787 F.3d at 794. Indeed, our 

caselaw seemingly points in the opposite direction, for we have said that M.C.L. § 333.7401 falls 

within the even narrower definition of the Guidelines. See, e.g., United States v. Gardner, 32 F.4th 

504, 529 (2022). And our caselaw notes that, under Michigan law, “the specific substance a 

3We are apparently on one side of a lopsided circuit split on the issue of whether courts 

must employ the “categorical approach” as we do for other statutes, like the Armed Career 

Criminal Act, when evaluating § 841(b) predicate offenses. See generally Mathis v. United States, 

579 U.S. 500 (2016). We said in Soto, without any analysis or citation, that “this court does not 

employ a categorical approach to determining whether a prior conviction constitutes a ‘felony drug 

offense’ for purposes of section 841(b)(1).” 8 F. App’x at 541. We have relied on this language 

to reject similar arguments to those advanced by Brown here, see, e.g., Meeks v. Kizziah, 2020 WL 

9396243, at *2 (6th Cir. Dec. 15, 2020) (order), as have the district courts within our circuit, see, 

e.g., United States v. Chappell, 2020 WL 5064656, at *3–4 (E.D. Mich. Aug. 27, 2020). But it 

appears that we are the sole outlier. The First, Second, Third, Seventh, Eighth, and Ninth Circuits 

have all concluded that courts must use the categorical approach to determine whether a particular 

prior felony drug offense qualifies for purposes of § 841(b)’s statutory enhancement. See United 

States v. Thompson, 961 F.3d 545, 551 (2d Cir. 2020) (collecting cases). 
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defendant is charged with possessing or delivering is one of the elements of a § 333.7401 

violation.” United States v. Pittman, 736 F. App’x 551, 555 (6th Cir. 2018) (collecting cases). 

Accordingly, “[b]ecause Michigan courts treat the specific substance as an element of the offense,

§ 333.7401(2)(a)(iv) is divisible,” id., and therefore it apparently matters not whether § 333.7401 

also covers substances and immediate precursors given Brown’s cocaine-distribution convictions. 

See also United States v. House, 872 F.3d 748, 753 (6th Cir. 2017) (“Michigan’s controlledsubstance statute is divisible.”). 

D.

Finally, Brown asserted initially that the district court erroneously calculated his 

Guidelines range by concluding that his prior drug-distribution convictions rendered him a career 

offender under U.S.S.G. § 4B1.1. The government responded that there is no reason to address 

this challenge because Brown’s life sentence was statutorily required, and thus the Guidelines 

played no role in his sentence and would be a factor only if we vacated both counts that mandated 

the § 841(b) life-in-prison enhancement. Brown then waived this issue in his reply, conceding 

that, “if the career offender adjustment becomes relevant upon resentencing, that it should be 

decided by the district court in the first instance.” That waiver aside, his statutory enhancement 

stands with respect to count six, so this issue is without merit. 

V.

For these reasons, we affirm in part, vacate in part, and remand for further proceedings 

consistent with this opinion.