NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 18a0309n.06

No. 17-3018

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEE T. TURNER,

Defendant-Appellant.

ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF 

OHIO

BEFORE: BOGGS, CLAY, and DONALD, Circuit Judges.

CLAY, Circuit Judge. Defendant Lee T. Turner was convicted in federal district court of

conspiracy to possess with intent to distribute at least one kilogram of a mixture or substance 

containing heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i), and 846, and possessing a 

firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). He was sentenced to 360 months’ 

imprisonment. On appeal, Turner raises numerous challenges to his sentence. For the reasons set 

forth below, we AFFIRM the district court’s judgment.

FACTUAL AND PROCEDURAL HISTORY

From late 2013 to late 2014, Turner played a central role in a drug conspiracy involving a 

dozen people. Operating out of his home in Toledo, Ohio, Turner sold large quantities of heroin 

to drug dealers. At times, he introduced drug users to the dealers he supplied. He also recruited 

accomplices, taught them to become dealers, and, with a co-conspirator’s help, recorded his 
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customers’ debts in a ledger. He had his heroin stamped, so others would know that he had 

supplied it.

Sometime in November 2014, Toledo police officers seized one-half kilogram of heroin 

from a dealer Turner was supplying. The dealer became an informant and told police about 

Turner’s role in the conspiracy. With the informant’s help, police officers set up a controlled buy 

from Turner for one kilogram of heroin. When Turner arrived at the agreed-upon location carrying 

the drugs, he was arrested. A search of Turner’s residence and related locations revealed firearms, 

heroin, drug paraphernalia, and $45,000 in cash. Searches of Turner’s cellphones revealed 

incriminating text messages.

In March 2016, Turner pleaded guilty to two crimes: (1) conspiracy to possess with intent 

to distribute at least one kilogram of a mixture or substance containing heroin, in violation of 21 

U.S.C. §§ 841(a)(1), (b)(1)(A)(i), and 846; and (2) possessing a firearm as a convicted felon, in 

violation of 18 U.S.C. § 922(g). The felon-in-possession charge was based on Turner’s prior 

convictions for various crimes in Ohio and Michigan state courts. 

Prior to sentencing, and while in jail, Turner called family members to ask them to collect 

drug debts on his behalf. He also purportedly tried to convince a fellow inmate to murder the 

informant who turned him in, as retribution.1 To deflect suspicion, Turner told the inmate not to 

act until after Turner’s sentencing and imprisonment. However, Turner’s plan was thwarted when 

the inmate had second thoughts and contacted law enforcement.

 

1 While Turner denies asking the inmate to murder the informant, calling the accusation 

“outrageous,” (Def.’s Br. at 43), he has explicitly declined to challenge the district court’s finding 

that he made such a request, (Def.’s Reply Br. at 8 (“[W]hile Appellant vehemently denies [the]

outrageous claims, he has not challenged the District Court’s [finding] for appellate purposes, in 

light of the nearly insurmountable standard for reversal.”)). Consequently, for purposes of this 

appeal, this Court must assume that Turner did plan to have the informant murdered.
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At sentencing, the parties discussed five issues: (1) whether Turner was an organizer or 

leader of the drug conspiracy, triggering a four-point offense-level increase under United States 

Sentencing Guideline § 3B1.1(a); (2) whether Turner obstructed justice by plotting against the 

informant, triggering a two-point offense-level increase under guideline § 3C1.1; (3) whether 

Turner accepted responsibility for his crimes, triggering a three-point offense-level decrease under 

guideline § 3E1.1; (4) whether the district court could base its sentencing decision, at least in part, 

on Turner’s refusal to identify his heroin suppliers; and (5) whether Turner qualified as a career 

offender under guideline § 4B1.1, triggering an increase in his criminal history rating.

The district court resolved most of these issues in favor of the government. First, it applied 

the leadership enhancement, noting that Turner played a central role in the conspiracy, recruited 

and vetted accomplices, had assistance from an accomplice in keeping a drug ledger, and asked 

family members to collect his debts while he was in jail. Second, it applied the obstruction 

enhancement, citing Turner’s plot against the informant. Third, it declined to apply a reduction 

for acceptance of responsibility, believing the reduction incompatible with its obstruction finding. 

Fourth, it initially determined that its sentencing decision could account for Turner’s failure to 

identify his heroin suppliers. However, after the government conceded that this would likely be 

improper, the district court stated that it would not consider Turner’s failure to cooperate. Fifth, 

the district court determined that Turner qualified as a career offender, citing his prior convictions 

for Ohio Robbery under Ohio Rev. Code § 2911.02, and Michigan Felonious Assault under M.C.L. 

§ 750.82. 

Based on these rulings, the district court determined that Turner’s guidelines range was 

360 months to life imprisonment. It sentenced Turner at the bottom of this range, to 360 months’ 
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4

imprisonment on the drug count and 120 months’ imprisonment on the firearms count, with the 

sentences running concurrently.

On appeal, Turner renews the claims he raised in the district court. In his opening brief, 

he states that the district court “clearly and unequivocally considered Appellant’s failure to name 

his sources” when determining his sentence. (Def.’s Br. at 50.) However, after the government’s 

brief highlighted the district court’s promises not to do so, Turner modified his argument. Now, 

in his reply brief, Turner argues that the district court’s promises were ambiguous, making it 

“reasonable to conclude the District Court considered Appellant’s failure to cooperate.” (Def.’s 

Reply Br. at 16.) 

With regard to his career offender designation, Turner cites United States v. Yates, 866 

F.3d 723 (6th Cir. 2017)—decided after his sentencing—which holds that Ohio Robbery is not a 

“crime of violence” and therefore cannot trigger the career offender provision. The government 

acknowledges that Yates is controlling. (Gov’t Br. at 5–6.) Accordingly, the government concedes 

that Turner’s career offender designation was erroneous. (Id.)

DISCUSSION

Standard of Review

We review a criminal sentence under a deferential abuse of discretion standard, for 

procedural and substantive reasonableness. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 

2007). A district court’s “consideration of an impermissible [sentencing] factor is more properly 

considered a procedural, not substantive, error.” United States v. Cabrera, 811 F.3d 801, 809 (6th 

Cir. 2016). “In reviewing a district court’s application of the Sentencing Guidelines, this Court 

will ‘accept the findings of fact of the district court unless they are clearly erroneous and [will]

give due deference to the district court’s application of the Guidelines to the facts.’” United States 
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v. Moon, 513 F.3d 527, 539–40 (6th Cir. 2008) (quoting United States v. Williams, 355 F.3d 893, 

897–98 (6th Cir. 2003)). “We review a district court’s legal conclusions regarding the Sentencing 

Guidelines de novo.” Id. at 540.

Analysis

This case presents five issues: (1) whether Turner was an organizer or leader of the drug 

conspiracy; (2) whether Turner obstructed justice by plotting against the informant; (3) whether 

Turner accepted responsibility for his crimes; (4) whether the district court improperly based its 

sentencing decision, at least in part, on Turner’s refusal to identify his heroin suppliers; and 

(5) whether Turner qualified as a career offender. We address each issue in turn.

I. Organizer or Leader Enhancement

Guideline § 3B1.1(a) applies a four-point offense-level increase if the defendant was “an 

organizer or leader of a criminal activity that involved five or more participants or was otherwise 

extensive[.]” In determining whether the defendant was an “organizer or leader,” the district court 

should consider any relevant circumstances, including

the exercise of decision making authority, the nature of participation in the 

commission of the offense, the recruitment of accomplices, the claimed right to a 

larger share of the fruits of the crime, the degree of participation in planning or 

organizing the offense, the nature and scope of the illegal activity, and the degree 

of control and authority exercised over others.

U.S.S.G. § 3B1.1 App. Note 4. “A district court need not find each factor in order to warrant an 

enhancement.” United States v. Castilla-Lugo, 699 F.3d 454, 460 (6th Cir. 2012).

However, to qualify for the leadership enhancement, the defendant must have exerted 

control over at least one other participant in the criminal scheme. See U.S.S.G. § 3B1.1 App. Note 

2. Consequently, the enhancement can be applied “where a defendant has ‘exerted control over at 

least one individual within a criminal organization,’ but not where the defendant has ‘merely 
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exercised control over the property, assets or activities of the enterprise.’” United States v. 

Swanberg, 370 F.3d 622, 629 (6th Cir. 2004) (quoting United States v. Gort-DiDonato, 109 F.3d 

318, 321 (6th Cir. 1997)).

The dispute in this case centers on whether Turner exerted control over at least one of his 

accomplices. The district court ruled that he had, noting that Turner played a central role in the 

conspiracy, recruited and vetted accomplices, had assistance from an accomplice in keeping a drug 

ledger, and, while in jail, asked relatives to collect his drug debts. Turner, by contrast, denies 

controlling any of his accomplices. He argues that they worked together collaboratively. 

There was more than enough evidence to support the district court’s decision, especially in 

light of the “due deference” given to the district court’s application of the guidelines to the facts. 

Moon, 513 F.3d at 539–40. It is uncontested that Turner played a central role in the drug 

conspiracy and was critical to its success. And contrary to Turner’s suggestion, there was 

substantial evidence that he controlled at least one of his accomplices. For example, he helped 

initiate the conspiracy; he put his customers on regular, weekly payment plans; he recruited and 

vetted accomplices; and he instructed an accomplice to update his drug ledger. In addition, an FBI 

agent testified at sentencing that, according to a co-conspirator, Turner sometimes told dealers 

what prices to set for the drugs. Taken together, these considerations are sufficient to show control. 

See, e.g., United States v. Sierra-Villegas, 774 F.3d 1093, 1101 (6th Cir. 2014) (noting that a 

defendant’s role in initiating a conspiracy is “significant” in assessing the degree of control and 

authority exercised over others); United States v. Ugochukwu, 538 F. App’x 674, 681 (6th Cir. 

2013) (finding control where, among other factors, the defendant “controlled the means and price 

of supply” of the drugs); United States v. Fenderson, 354 F. App’x 236, 242 (6th Cir. 2009) (same 

result where accomplices were “required to sell the drugs to their end users, then return and pay 
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[the defendant] a premium for the ‘fronting’ that had occurred”); United States v. Hopson, 

134 F. App’x 781, 796 (6th Cir. 2004) (noting that the control inquiry takes into account whether 

the defendant “recruited his accomplice[s]” or “exercised authority” over them); United States v. 

Schultz, 14 F.3d 1093, 1099 (6th Cir. 1994) (finding control where, among other factors, the 

defendant played a large role “[o]rganizing and coordinating” the drug conspiracy).

In essence, Turner asks this Court to find that his accomplices were more akin to 

independent contractors than employees. However, the district court rejected that argument. It 

found that Turner “didn’t sit passively there and shrug his shoulders . . . as though somehow [his 

accomplices] are purely independent contractors without any obligation or responsibility to him. 

That’s how I interpret the record.” (R. 109, sentencing tr., PageID# 822.) There was ample 

support for that conclusion, and we will not second guess it. See Ugochukwu, 538 F. App’x at 682 

(“We defer to the district court’s decision because the court was in the best position, after hearing 

the evidence, to determine whether the defendant qualified for the four-level [leadership] 

adjustment.”).

II. Obstruction of Justice Enhancement

Guideline § 3C1.1 applies a two-point offense-level increase for obstruction of justice. 

Specifically, it provides that

[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or 

impede, the administration of justice with respect to the investigation, prosecution, 

or sentencing of the instant offense of conviction, and (2) the obstructive conduct 

related to (A) the defendant’s offense of conviction and any relevant conduct; or 

(B) a closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. The district court applied the enhancement here, citing Turner’s plot against 

the informant. 
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This was error. It is undisputed that Turner was not attempting to influence the informant; 

he sought only retaliation. Indeed, Turner ensured that the informant would not be harmed—and 

would not learn of the plot against him—until after Turner’s sentencing, at which point the plot

could not possibly have affected the criminal proceeding. Consequently, Turner did not obstruct 

justice “with respect to the investigation, prosecution, or sentencing of the instant offense of 

conviction,” as required by the guideline. Id. The following excerpt from an Eighth Circuit case, 

United States v. Galaviz, is persuasive: 

As relevant here, § 3C1.1 provides that a defendant’s offense level should be 

enhanced two levels if he “willfully . . . attempted to obstruct . . . the administration 

of justice with respect to . . . the sentencing of the instant offense of conviction.” 

The district court found on a sufficient record that while in prison, after pleading 

guilty, Mr. Galaviz engaged in a conspiracy to murder Ubeldo Lopez–Gonzalez, 

who was a confidential informant in the case. The district court also found, again 

on a sufficient record, that Mr. Galaviz’s motive for entering the conspiracy was to 

retaliate against Mr. Lopez for his cooperation with the government. But because 

Mr. Galaviz had already pleaded guilty, he could not have intended to obstruct 

justice “with respect to the instant offense” by plotting to kill Mr. Lopez unless he 

thought that Mr. Lopez was going to testify against him at sentencing, and that 

indeed was the government’s theory in the first brief that it filed in this court. The 

infirmity of this position is that the record will not support a finding that Mr. 

Galaviz had reason to think that Mr. Lopez would be a witness against him at 

sentencing.

687 F.3d 1042, 1043 (8th Cir. 2012) (alterations in original). In a later case, the Eighth Circuit 

was more succinct: “When there is no evidence that retaliation would impede the progress of the 

defendant’s case in any way, the enhancement pursuant to § 3C1.1 cannot be applied.” United 

States v. Parker, 871 F.3d 590, 607 (8th Cir. 2017) (quotation marks, citation, and alteration 

omitted).

In an attempt to overcome the guideline’s plain language, the government points to 

Application Note 4, which provides a long list of examples of covered conduct. The application 
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note specifically mentions threatening, intimidating, or unlawfully influencing a witness or juror; 

committing or suborning perjury; producing false documents during a judicial proceeding; 

destroying or concealing evidence; attempting to escape from custody before trial or sentencing; 

providing the court with false information; failing to comply with a restraining order; and other 

conduct. U.S.S.G. § 3C1.1 App. Note 4(A)-(H), (J). It does not mention purely retaliatory acts 

against witnesses. Nonetheless, the application note does state that the guideline applies to “other 

conduct prohibited by obstruction of justice provisions under Title 18, United States Code (e.g., 

18 U.S.C. §§ 1510, 1511)[.]” § 3C1.1 App. Note 4(I). One such provision is 18 U.S.C. § 1513, 

which punishes anyone who “kills or attempts to kill another person with intent to retaliate against 

any person” for the latter individual’s role in a criminal investigation or proceeding. 18 U.S.C. 

§ 1513(a). Therefore, Application Note 4(I) would, it appears, apply the obstruction guideline to 

purely retaliatory acts against witnesses. This Court employed such reasoning in an unpublished 

case in 1993, United States v. Vassar, 9 F.3d 110 (table), 1993 WL 406797, at *3 (6th Cir. 1993),

applying the obstruction enhancement to a retaliatory plot against an informant. Other circuits 

have reached similar conclusions. See United States v. Morrison, 218 F. App’x 933, 947 (11th 

Cir. 2007); United States v. Sealed Deft. 1, 175 F.3d 1009 (table), 1999 WL 177253, at *1 (2d Cir. 

1999); United States v. Lagasse, 87 F.3d 18, 24 (1st Cir. 1996); United States v. Downing, 60 F.3d 

837 (table), 1995 WL 410155, at *2 (10th Cir. 1995); United States v. Cotts, 14 F.3d 300, 308 (7th 

Cir. 1994).

2

 

2 Some of these cases relied on prior versions of the application note, which was 

substantively identical to the present version. Compare U.S.S.G. § 3C1.1 App. Note 3(i) (1995) 

(clarifying that the obstruction guideline applies to “conduct prohibited by 18 U.S.C. [§§] 1501–

1516”), with U.S.S.G. § 3C1.1 App. Note 4(I) (1997–2017) (clarifying that the obstruction 

guideline applies to “other conduct prohibited by obstruction of justice provisions under Title 18, 

United States Code (e.g., 18 U.S.C. §§ 1510, 1511)”).
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However, we do not follow Vassar; that case, and every out-of-circuit case cited above, 

interpreted the pre-November 2006 version of the obstruction guideline. In that version, the 

guideline applied if the defendant obstructed justice “during the course of” the investigation, 

prosecution, or sentencing of the defendant’s criminal case. U.S.S.G. § 3C1.1 (2005). Such 

language arguably covered conduct, like purely retaliatory acts against witnesses, that obstructs 

justice in a general sense. Because the guideline was ambiguous, the Vassar court appropriately 

consulted the Guidelines commentary. That commentary—specifically, Application Note 4(I)—

confirmed that purely retaliatory acts against witnesses were covered.

The current version of the obstruction guideline, by contrast, contains different language. 

Guidelines Amendment 693, effective November 1, 2006, updated the guideline by replacing the 

phrase “during the course of” with the phrase “with respect to.” See U.S.S.G. App. C Supp., 

Amend. 693. Consequently, the guideline now applies where the defendant willfully obstructed 

“the administration of justice with respect to the investigation, prosecution, or sentencing of the 

instant offense of conviction.” Id. at § 3C1.1 (emphasis added). This language is unambiguous: 

it indicates that obstructing justice in a general sense no longer triggers the enhancement because 

the defendant must have intended to obstruct his criminal proceeding. See Galaviz, 687 F.3d at

1043 (holding that “a general retaliatory motive” is insufficient to trigger the enhancement unless 

there is a showing “that the plot was intended to obstruct justice on the instant offense of 

conviction”). 

Accordingly, there is a conflict between the guideline itself, which clearly indicates that it 

does not apply to purely retaliatory conduct against witnesses, and Application Note 4(I), which 

suggests that such conduct remains covered. This conflict must be resolved in favor of the 

guideline. See Stinson v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines 
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Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or 

a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”). 

Consequently, Turner’s retaliatory plot against the informant should not have triggered the 

obstruction guideline.

III. Reduction for Acceptance of Responsibility

The district court declined to apply a three-point offense-level reduction under guideline 

§ 3E1.1 for acceptance of responsibility, believing the reduction unwarranted in light of its 

obstruction finding. See U.S.S.G. § 3E1.1 App. Note 4 (“Conduct resulting in an enhancement 

under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that 

the defendant has not accepted responsibility for his criminal conduct.”). Given our determination 

that the obstruction guideline should not have been applied, the district court’s reasoning was 

erroneous. Nonetheless, the district court’s conclusion was correct: Turner was not entitled to a 

reduction for acceptance of responsibility. Specifically, Turner continues to insist that he was not 

an organizer or leader of the drug-distribution enterprise, and the district court found that he 

arranged a murder-for-hire plot from jail. Therefore, Turner did not clearly demonstrate 

acceptance of responsibility. See U.S.S.G. § 3E1.1 App. Note 1(A)–(B) (stating that application 

of an acceptance of responsibility reduction depends, in part, on whether the defendant has 

(1) “truthfully admitt[ed] the conduct comprising the offense(s) of conviction, and truthfully 

admitt[ed] or not falsely den[ied] any relevant conduct for which the defendant is accountable 

under § 1B1.3 (Relevant Conduct),” and has (2) “voluntarily terminat[ed] or withdraw[n] from 

criminal conduct or associations”).
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IV. Turner’s Failure to Name His Heroin Suppliers

Turner argues that the district court based his sentence, at least in part, on his failure to 

identify his heroin suppliers. According to Turner, this constituted a violation of his Fifth 

Amendment privilege against self-incrimination because he was never offered immunity in 

exchange for this cooperation. Turner notes that the district court initially stated that it was “deeply 

troubled by [Turner’s] refusal to disclose his sources” and that it would consider Turner’s failure 

to cooperate when “determining what sentence to impose.” (R. 113, sentencing tr., PageID# 963–

64.)

However, as the government points out in its opposition brief, the district court changed its 

mind. Despite its initial inclination to consider Turner’s failure to cooperate, the district court 

ultimately accepted Turner’s argument that doing so would be improper. (R. 109, sentencing tr., 

PageID# 857–58 (“Okay, then I will disregard that. If it’s not proper for me to take those into 

consideration, I will not. . . . [T]he remarks I made and the feelings I have of that regard, like other 

feelings I often have in other circumstances, one way or the other will play no role in my decision. 

And I assure you of that[.]”).) The district court then repeatedly guaranteed that it would not base 

Turner’s sentence, in any way, on his failure to identify his heroin suppliers. (Id. at 891, 893.)

In his reply brief, Turner argues that the district court’s guarantees were ambiguous. 

Turner points out that, at one point, the district court promised not to consider “those 

considerations and concerns,” but did not explicitly specify which considerations it was referring 

to. (R. 109, sentencing tr., at PageID# 891.) This argument fails because it is crystal clear from 

the context of the district judge’s remarks that he was referring to the “considerations and 

concerns” surrounding Turner’s failure to identify his heroin suppliers. There is no other plausible 
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interpretation of the transcript. Indeed, Turner does not even attempt to provide an alternative 

reading.

V. Career Offender Designation

Under guideline § 4B1.1(a), a defendant is deemed a career offender if, among other 

requirements, the defendant “has at least two prior felony convictions of either a crime of violence 

or a controlled substance offense.” In this case, the district court determined that Turner qualified 

as a career offender due to his prior convictions for Robbery under Ohio Rev. Code § 2911.02, 

and Felonious Assault under Mich. Comp. Laws § 750.82. The district court’s analysis of Turner’s 

Ohio Robbery conviction was based on this Court’s unpublished decision in United States v. 

Mansur, 375 F. App’x 458, 463–64 (6th Cir. 2010), holding that Ohio Robbery constitutes a “crime 

of violence.” As a result of his career offender designation, Turner’s criminal history category 

was automatically set to VI, the highest rating. See U.S.S.G. § 4B1.1(b). Otherwise, it would have 

been at category III. (See R. 101, order, PageID# 675.)

While Turner’s appeal was pending, this Court decided Yates, a published opinion 

overruling Mansur. In Yates, this Court held that Ohio Robbery is not a “crime of violence,” and 

therefore cannot trigger the career offender provision. 866 F.3d 727–34. In light of Yates, the 

government concedes that Turner’s career offender designation was erroneous. (Gov’t Br. at 5–

6.) We agree that Yates is controlling, and as a result, Turner’s career offender designation was 

erroneous. 

VI. The District Court’s Errors Were Harmless

As discussed above, the district court erred by applying the obstruction of justice 

enhancement and by applying the career offender enhancement. However, where a district court 

errs in its guidelines calculations, remand is appropriate only if the error affected the defendant’s 
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guidelines range. United States v. Gill, 348 F.3d 147, 155 (6th Cir. 2003) (“In order to demonstrate 

that the trial court’s error was not harmless, the defendant must show that the trial court could have 

found, by a preponderance of evidence, that a different guideline range was appropriate.”). In the 

instant case, the errors did not. Without the obstruction of justice enhancement, Turner’s offense 

level would have been 40. Without the career offender enhancement, Turner’s criminal history 

rating would have been at least III. Accordingly, his guidelines range would have been 360 months 

to life imprisonment, see U.S.S.G. § 5A (Sentencing Table), which is the same guidelines range 

used by the district court at sentencing. Therefore, the district court’s errors were harmless.

3

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

 

3

 Although Turner argues that his career offender status will impact his designation within 

the Bureau of Prisons, that issue relates to the service of his sentence and does not entitle him to a 

remand. See United States v. Wales, 68 F. App’x 575, 587 n.11 (6th Cir. 2003) (“As for 

[defendant’s] argument regarding BOP’s consideration of his PSR, the Court does not believe that 

this consideration mandates that he receive a new sentencing hearing.”).